- trying to bribe voters or accepting bribes (an offence under Section 10)
- providing food, drinks, refreshments or provisions to influence a voter (Section 8)
- spending on behalf of a candidate to campaign for the candidate (Section 15A)
- spending above the maximum limit after the publication of the election notice in the Gazette (Section 19).
- paying for the hire, use or borrow of vehicles, vessels or animals of transport of any kind or the use of any house, land, building or premises (Section 20).
So if there are laws in place to punish such offenders, why is it still happening?
Enforcement is obviously lacking here.
Then what can we do about it?
We can push for the Election Commission (EC) to equip enforcement teams with the resources, training and, importantly, power to enforce the law. These teams must work closely with the police to investigate all reports of bribery and corruption.
But even better, create additional posts to set up a special enforcement team under the EC without depending on other enforcement authorities. This is actually a recommendation of the Parliamentary Select Committee on Electoral Reform that was established five years ago, in 2012!
As for political party financing, there are no existing laws or structures governing political parties’ income and expenditure. But maybe this fact is more obvious after the infamous revelation by no less than our prime minister that a generous Saudi had donated RM2.6 billion towards BN’s GE13 campaign.
Also obvious – there is no clear law against the use of government machinery for election campaigning. While this may be defined as corrupt practice in the Penal Code, it has never been enforced and the EC has made it clear it does not believe this is an offence!
The 2016 Sarawak state elections and the Sungai Besar and Kuala Kangsar by-elections were rife with bribery, treating and money politics, with little enforcement by the EC or the police. Cash bribes during the campaign period and on polling day have been documented and exposed. Both federal and state governments (by both Barisan Nasional and Pakatan Harapan) have used their resources and machinery for election campaigning. Goodies and giveaways in the guise of government programmes during campaign events are a daily occurrence to the extent that these become the dominant feature of political campaigns. The funds used by political parties on events, advertising and bribes are extravagant and serve to create an unlevel playing field between those with access to enormous funds (such as funds from sovereign wealth funds) and those that survive only on public donations.
What can be done then?
The G25 Working Committee on Political Financing says (and we agree):
- The EC should take over the role of registering and regulating political parties from the Registrar of Societies.
- A new law should include rules on campaign contributions, limits on expenditures for parties and mandate disclosure and reporting of funding sources and spending. This law should strengthen the monitoring and enforcement capabilities of the EC. It must limit how much money can be given to parties. This applies to contributions in the form of loans, cash or in kind, such as sponsorship of goods, venues or services. It applies to all types of donors: individuals, companies and politically-linked third party entities. Anonymous contributions over RM3,000 must be banned to prevent covert financing.
- A new law is required to oversee the conduct and financing parties. This includes the financing of internal party elections, not just elections for state or federal representation. Legislative reforms must address reporting requirements and public disclosure to enhance transparency and accountability. Parties and candidates should be mandated to report itemised contributions and spending. Reporting frequency should be higher during election periods. The reforms must open up public access to updated information on the income and expenditure of parties (and candidates during general elections). Members of the public should be able to access such information with ease.
- Independent external oversight is required of the conduct of internal party elections, from the grassroots level to the top leadership. At the intra-party level, there must be accountability and transparency in fundraising and expenditure during elections. This covers expenditure incurred before, during and after a party election.
- Limits on party expenditure should be enforced both during election campaigns and outside of the campaign period.
- Elected representatives are required to publicly declare their assets before taking public office and must update this declaration regularly.
Who’s going to make them do all this, if it all comes to pass?
The newly empowered enforcement teams that we mentioned at the top, naturally!
Having a caretaker government
This is a best practice in functioning democracies but is not in Malaysia because…well, when one has governed the country since Independence with many checks and balances eroded, let’s just say the status quo works to their advantage.
But actually, the EC has the power under Article 113(5) of the Federal Constitution to make rules for the purposes of its functions. These rules may include prohibiting the use of public institutions or government machinery by the government of the day in their political and election campaigns.
BERSIH 2.0 wants the government to implement a Code of Conduct for a caretaker government. The aim of these guidelines is to ensure that during the caretaker period, the federal and state governments conduct themselves appropriately so that, although the business of government service and administration continues, major decisions and actions must be avoided so that they do not bind an incoming government.
Must-nots and musts of a caretaker government from the time of the dissolution of Parliament or State Assembly until the time the incoming government takes office:
- make major policy decisions that are likely to commit an incoming government;
- make significant appointments;
- enter major contracts or undertakings;
- announce any new financial grants or promises;
- lay foundation stones etc., of projects or schemes of any kind; or
- make any new promises of construction of infrastructure or the carrying out of public projects.
- use, and shall ensure that no cause is given for any complaint that it has used, its official position for the purposes of its election campaign and in particular:
- combine their official visits with electioneering work and shall not make use of governmental or official machinery, resources, transport or personnel during their electioneering work;
- use federal or state government machinery, resources, transport and personnel to further the interests of the caretaker government and, in particular, no ministry, department, agency or government-linked corporation shall be directed or permitted to hold functions or activities in conjunction with any electioneering work or campaigning activity;
- monopolise public places and facilities, and other parties and candidates shall be allowed the use of such places and facilities on at least the same number of times and on the same terms and conditions;
- use monies from the federal or state funds to place advertisements in the media;
- use federal or state funds to hold rallies or meetings;
- participate in the political process in their professional capacity – they can only do so in their private capacity, avoiding any conflict of interest and without displaying their political affiliations while at work;
- enter any polling station or place of counting except in their capacity as a candidate or voter or authorised agent; and
- ensure free and fair access to free-to-air radio, television and other broadcast media;
- ensure and is responsible for the security of all citizens equally, and that all police and enforcement officers shall act without fear or favour in providing such security.
The PSC on Electoral Reform Report recommended in April 2012 that within three months the EC prepare a guideline and code of conduct on the functions of a caretaker government at both state and federal level.
Guess what the EC has done since about this…
So let’s press for these important reforms – ZERO POLITICAL CORRUPTION and SETTING UP A CARETAKER GOVERNMENT!
But there’s more. Click here for the rest of the reforms needed.