Free elections, but make it fair, too

NST: 18 May 2008
The Human Rights Commission of Malaysia’s (Suhakam) annual reports have never been debated in Parliament. But this can never detract from its findings. This year, given the context of the recently concluded general election, one conclusion stands out: ‘While elections in Malaysia have been free, the process has not altogether been fair’. This was Suhakam’s finding in its recently released 2007 Annual Report. Although the findings were made before the March 2008 elections, the basic problems remain: access to media, phantom voters, right to assembly and freedom of expression, being among them. ELIZABETH JOHN and ANIZA DAMIS look at some of the issues, and what should be done.
Respect for human rights
The first concern raised by the report was that the atmosphere of an election campaign should be one of respect for human rights.
This means freedom of expression applies to all parties, candidates, voters and the media.
And while the government has a duty to ensure peace, it should not arbitrarily restrict freedom through the use of laws like the Internal Security Act 1960.
A key point is that the issuance of permits for events, such as a ceramah, should not be discriminatory and rejection should not be based on speculation, suspicion or fear.
“It’s the best statement I’ve heard from Suhakam. I can’t concur more,” says Kuala Selangor MP Dr Zulkifli Ahmad.
A steering committee member for the mammoth Bersih rally and Pas’ research chief, Zulkifli is used to getting applications for permits rejected.
“Sometimes, the reason for rejection is to avoid traffic chaos. But at all our ceramah, we have many traffic wardens who keep things under control.”
Zulkifli says the authorities need to recognise that voters have matured and they should not fear that problems that will crop up at public assemblies.
“Look at the potentially turbulent situation now. Divisions within the ruling party, Molotov cocktails thrown at the DAP headquarters in Ipoh, voters aren’t getting agitated … they are handling things with tact.
“When everyone is changing, authorities that keep using draconian laws will become dinosaurs, outdated.”
Ethnic gerrymandering and transferring of voters
Ong Kian Ming and Bridget Welsh’s case study of the 2002 redelineation process for Kedah showed how moving safe areas into vulnerable areas and changing boundaries helped strengthen BN’s electoral position in the following election.
They noted that the government consciously reversed a long-standing trend of creating Malay-dominant constituencies in favour of more mixed seats.
There was also a reallocation of state seats into different parliamentary districts, according to the writers of Elections and Democracy in Malaysia.
The political impact in every seat after the redelineation exercise were obvious.
For instance, in 1999, the Pokok Sena parliamentary seat – made up of the Bukit Lada, Langgar and Tanjong Seri state seats – was won by Pas with a 3,211 vote majority.
After the redelineation exercise, the large Malay majority seat of Tanjong Seri was swapped for the more mixed Derga seat.
If the result for that parliamentary seat was recalculated after the swap, Barisan Nasional would have won by a majority of 1,805 votes.
Universal suffrage
This refers to the extension of the right to vote to all adults without distinction of race, gender, belief of social status.
The report makes a particular point about making polling stations accessible to the indigenous people.
For Orang Asli who live in remote areas, it’s often a case of “no transport, no vote”, says Centre for Orang Asli Concerns’ Colin Nicholas.
Communities that live in government-established settlements, where there is a hall or centre that is turned into a polling station, will vote.
Otherwise, it’s up to political parties to arrange for transport if they want the votes.
“In many areas in the last general election, the Orang Asli were seen as ‘sure BN voters’ and candidates didn’t bother to campaign there or arrange for transport on polling day.
“So the Orang Asli didn’t bother to go and vote. Why vote for people who don’t bother about you?” said Nicholas.
He cited an example of a seat in the interior of Pahang where the BN party workers sent lorries to pick up Orang Asli voters on polling day.
The voters refused to get in. Lorries were for cattle, they told the party workers, and insisted on a proper bus or van. Annoyed party workers ignored them and the community did not vote.
That year, said Nicholas, the opposition party won the seat by five votes.
“Voting isn’t important enough to drive the Orang Asli to walk from the interior to a polling centre.”
Equal access to media
Although the most recent elections may have seen an improved coverage of opposition candidates, a fair election requires that all parties are given an equal coverage in the media, which includes the placement and timing of exposure. Coverage should not be partial to any side.
However, Information Minister Datuk Ahmad Shabery Cheek feels that in general, the opposition can make use of new media to a greater advantage than if they were to use the traditional mainstream media.
“New media is a part of media as a whole. If you look at some countries, the opposition don’t even have access to the new media.
“If you talk about the Internet, for instance, the government has specific controls they can use to block or restrict websites.
“In some countries, if you want to have a portal, you have to register and have a licence. We don’t impose those rules in the country.
“The Internet penetration rate is considered high, too. Out of a population of 27 million people, 14 million have access to the Internet and the number is growing.
“Nobody stops anybody from using that. So, you have to look at the matter from this perspective. This is already media.”
Ahmad Shabery says in future, opposition candidates may have access to government television channels like RTM1 and RTM2.
However, he does not know when this may be as it is up to the government to decide.
“The rakyat gives the mandate to the ruling party, to decide, in terms of approach, on how you run this country.
“The right to information is just like the right to food. The right for people to eat. We can say that people have the right to eat whatever they like, but sometimes, eating too much is also not good.
“And that’s the role of the government. We have to educate the people: on what is poison, what is not good for them and what is good for them.
“You have to educate the people first.”
Proportional representation
The first-past-the-post system may not truly reflect the will of the people. This is because there can be a big difference between the percentage of votes won by a political party, and the number of seats it is given in the Parliament.
Elections watchdog Malaysians for a Free and Fair Elections (Mafrel) acting-president Syed Ibrahim Syed Noh compares Kapar, the largest parliamentary constituency with more than 112,000 voters, with Putrajaya, which has fewer than 7,000 voters. The difference in population is large yet they each get one member of parliament.
This, says Syed Ibrahim, is disproportionate to the population size.
Instead, he recommends the popular vote system.
“If the opposition wins 40 per cent of the overall votes, and the government wins 60 per cent, then representation in the Dewan should reflect those numbers.”
Caretaker government
In between the dissolution of the old Parliament and the convening of the new Parliament, there needs to be a government to run the country during the election period. Currently, that caretaker government is the same as the one that was recently-dissolved.
However, this arrangement is open to the potential of abuse of government funds and machinery during campaigning.
Syed Ibrahim believes a policy should be set, either by having a completely fresh caretaker government comprising high-profile personalities like ex-judges who are appointed by the King, or a mixed system of caretaker and present government.
But, if a completely new caretaker government cannot be formed, Syed Ibrahim feels there should be restrictions to what the old (caretaker) government can do.
“There is a difference between running the country and launching things, or declaring projects.
“During (the first prime minister) Tunku Abdul Rahman’s day, when he wanted to go out campaigning, he would take time off his job – take leave – to make it clear that there is no overlap between him as the party candidate and him as the caretaker prime minister.”
It’s not right or wrong but rights and lack thereof
BASED on the issues raised, Suhakam makes the following observations and recommendations for free and fair elections:
The will of the people forms the basis of the government’s authority. Hence, citizens have the right to select their representatives. For them to make an informed choice, they should have the right of access to information, which includes the right to hear the manifesto of all parties and pledges of candidates. Access to information also necessitates the right of assembly.
– Right of assembly
All political parties should be allowed to hold rallies and ceramah without having to apply for permits during the campaign period, with the proviso that the assembly is peaceful and speech is not used to slander, create disharmony, incite hatred and compromise national security. The organisers must be made well aware that they are fully accountable for public safety and are liable to face charges in court if the gathering turns unruly.
– The police
The force should not act on mere suspicion, speculation, fear or imagination. There must be clear evidence of public disorder or incitement to create violence. Powers provided by restrictive laws, such as the Sedition Act, Internal Security Act, Official Secrets Act and Police Act should be exercised judiciously and a balance must be struck between security concerns and civil rights and freedom.
– Access to media
All parties should have equal access to media in terms of broadcast time and print space, as well as in timing and placement of their information. In short, access to media should be non-discriminatory. The media should be allowed to cover the campaign freely, without interference or unreasonable restriction by the authorities.
– Universal suffrage
Persons with disabilities and indigenous people have the right to vote. Hence, it is recommended that polling stations be made accessible to indigenous people in remote areas, polling stations to be disabled-friendly and ballot papers to be provided in Braille for those who are visually impaired.
The candidates elected should be an accurate reflection of the people’s choice. In this respect, several matters require attention.
– ‘Phantom voters’
The Election Commission should devise measures to ensure that those on the electoral rolls are genuine voters. The measures it has taken thus far are good but still inadequate in removing ‘phantom voters’.
The government should consider amending laws to empower the EC to check on the validation of one’s claimed residence. There should be better co-ordination between the National Registration Department and the EC so that the names of deceased electors are removed from the electoral rolls as soon as the death certificate is issued.
– Automatic registration
All eligible voters should be automatically registered upon attaining the age of 21.
– Delineation of constituencies
Any delineation exercise designed to dilute or increase the votes of a particular candidate or party is unacceptable in terms of the international norm of equality of suffrage. In this respect, Suhakam urges that the principle of democracy enunciated in the Federal Constitution and Article 21 of the Universal Declaration of Human Rights be respected and given due consideration in delineating constituencies. The use of an ethnic form of gerrymandering to control electoral outcomes should be discontinued.
– Longer campaign period
The campaign period for a general election should be longer than it has been in recent years, so that all views are equally represented and voters are able to hear the views of all parties. A reference point can be found in the 1959, 1964 and 1969 elections.
Equality should be exercised to ensure fair elections.
– Election-related laws
Administration of such laws should be implemented and enforced non-selectively to ensure that every candidate has an equal chance of winning.
– Caretaker government
It is recommended that when the parliament is dissolved, a caretaker government should take charge to ensure impartiality. This is also necessary to deter the use of public facilities and funds for campaigning.
The EC should be made directly accountable to the Parliament rather than to the executive branch to secure its independence.
The court should be given greater leeway to adjudicate electoral disputes.
At all rallies and during any campaign activities, candidates should refrain from slander and false allegations, as well as misuse of freedom of speech to incite hatred and communal and religious tensions.
Those who resort to undemocratic means to win elections and those who violate the law should be held accountable in timely manner.
‘Undemocratic means’ include vote-buying through outright gifts (cash, grants to private schools, allowances ostensibly to cover expenses of party supporters and as compensation in lieu of wages) and inducements such as expediting the administrative process (e.g. in issuing ownership titles to house buyers).
Malaysians have the right to elect their representatives to form the government. To ensure that the true will of the people is reflected, elections have to be free and fair.
The will of the people shall be the basis of the authority of the government. Based on this, citizens should exercise their right to vote in serious manner, while candidates and their parties should be responsible in their actions.