BERSIH 2.0’S DEMANDS
Electoral reforms for the 14th general election
Immediate actions to ensure a free and fair election
Table of Contents
Executive Summary. 3
An independent Election Commission. 5
Current Practice and Implications. 5
Corruption in Elections. 7
Current Practice and Implications. 7
Funding on Political Parties and Political Campaigns. 7
Caretaker Government 8
Automatic Voter Registration (AVR) 10
Current Practice and Implications. 10
The Electoral Roll 12
Current Practice and Implications. 12
Absentee Voting. 13
Current Practice and Implications. 13
Election Observation. 15
Current Practice and Implications. 15
Fair Election Boundaries. 16
Current Practices and Implications. 16
Minimum 21-day campaign period. 17
Free and fair access to the media during the campaign period. 17
Long Term Electoral System Reform.. 18
Current Practice and Implications. 18
APPENDIX 1: Political Financing Reforms. 19
APPENDIX 2: Caretaker Government Guidelines. 38
APPENDIX 3: Discrepancies in the Electoral Roll 40
APPENDIX 4: Proposal for Reforms to Absentee Voting. 57
APPENDIX 5: The Human Rights Implications of Delineation. 72
The BERSIH movement was founded in 2006 with the clear aim of advocating for clean and fair elections. Since its non-partisan formation in 2009, BERSIH 2.0’s success has been raising awareness among the Malaysian people on the various aspects of our election system. In particular, BERSIH 2.0 has highlighted the unlevel playing field and gaping holes for fraud to occur. In 2010, BERSIH 2.0 submitted its 15 recommendations for electoral reform to the Election Commission (EC), titled “Malaysian Civil Society’s Memorandum on Electoral Reforms in Malaysia 2010”. Subsequently, the first and last meeting was held between BERSIH 2.0 with the EC on 9 November 2010, where there were promises of regular meetings and a review of the reforms.
In 2012, the Parliamentary Select Committee (PSC) on Electoral Reform (ER) produced 22 recommendations to restore public confidence in Malaysia’s elections. Five years later, of these 22 recommendations, only the provisions for overseas voting and advanced voting for media personnel have been implemented. These recommendations were passed by Parliament. As a response, in June 2013, the Prime Minister Najib Razak announced the Election Commission would be placed under Parliament.
In 2017, Malaysians now face the prospect of another General Election mired in bias, fraud and corruption. It is now a matter of urgency that the Election Commission and the Federal Government take steps to restore the faith of the public in our most basic democratic right.
This memorandum highlights reforms that can all be implemented within 10 months, before the necessary dissolution of Parliament in June 2018.
These reforms are as follows:
- The appointment and re-structuring of an independent Election Commission that reports directly to Parliament;
- Removing corruption and money politics from elections;
- Implementing Automatic Voter Registration;
- Implementing a full audit of the electoral roll and the implementation of safeguards to maintain its integrity;
- Reforming the eligibility and processes for absentee voting, especially for Sabahans, Sarawakians and overseas Malaysian voters;
- Allowing domestic and international election observation missions to operate freely during elections;
- Creating fair election boundaries, to replace the current unconstitutional proposal by the Election Commission.
- Establishing enabling environment for free and fair media coverage during elections;
- Implementing a 21-day campaign period.
BERSIH 2.0 is committed to assisting in ensuring immediate reforms can be implemented within three months. These immediate reforms include:
- Establishment of the Parliamentary Select Committee on Electoral Reforms;
- Implementation of Election Commission enforcement mechanisms;
- Setting up of an Electoral Roll Audit Committee;
- Establishment of eligibility and processes for absentee voting, especially for Sabahans, Sarawakians and overseas Malaysian voters;
- Implementation of the processes for accrediting election observers;
- Development and adoption of a media code of conduct for election coverage;
- Implementation of a 21-day campaign period.
BERSIH 2.0 is offering our volunteer services to work with the Election Commission to ensure a clean and fair elections in 2018. We would like to stress that in the quest to improve voters’ suffrage and fair representation, no elections be held until these reforms are implemented in the next 10 months. Any election held without these reforms will sorely undermine the rights of the Malaysian people and the democratic process.
An independent Election Commission (EC) with integrity and expertise will restore public confidence in the EC. Public confidence in the EC commissioners is a requirement under Federal Constitution Article 114(2).
Currently, the budget for the Election Commission comes under the Prime Minister’s Department and matters related to the EC are addressed in Parliament by Ministers in the Prime Minister’s Department.
The appointment of Election Commissioners is made by the Yang di-Pertuan Agong, but on the advice of the Prime Minister, which is binding. This brings into question the independence of the appointees, especially when the current Chair of the EC is the former personal aide to the UMNO information chief and the former EC chair, who revealed he used his position to keep the Malays in power, has since become a high ranking member of a political party.
To ensure the independence of the EC, the appointment process, reporting and the operations of the EC must be reformed.
An Election Commission Nomination Committee should be formed to select appropriate candidates. The committee will have representatives from the three branches of government in addition to expert input from legally constituted bodies. The committee will consist of the following:
- The Prime Minister;
- The leader of the Opposition;
- The chair of the Parliamentary Select Committee for Electoral Matters;
- The ranking Opposition member of the PSC;
- The Chief Justice;
- The Chairperson of the Malaysian Human Rights Commission (SUHAKAM);
- The President of the Malaysian Bar Council;
- An additional civil society representative who has knowledge of or practical experience in electoral matters.
The nomination committee will make a public call for applications when a vacancy arises. The applicants will be screened for their eligibility. Public hearings will be held with shortlisted candidates, of which there must be at least three for each available vacancy.
The Nomination Committee will submit its chosen candidates to Parliament for approval by the House, after which it goes to the Yang di-Pertuan Agong for approval.
A person may not be appointed as an Electoral Commissioner if the person—
- is a member of a registered political party;
- is an officer or employee of a registered party or of any accounting unit of such a party;
- holds a relevant elective office; or
- has at any time within the last ten years—
- been such an officer or employee as is mentioned in (ii), or
- held such an office as is mentioned in paragraph (iii), or
- been named as a party donor in a register of donations (see reforms on political financing in Appendix 1).
A Parliamentary Select Committee on Electoral Reform (PSC) should be established, reflecting the composition of the House, to receive reports submitted by the Election Commission on an annual basis and after any state or federal level elections. Expenditure reports should also be submitted to the Committee. The PSC should carry out inquiries into improvements to be made to the electoral system and processes, with input from the Election Commission. The hearings of this Committee should be open to the public and all findings made public.
The Parliamentary Select Committee on Electoral Reform 2012 report recommended the EC be given the authority to manage its own budget and be directly responsible to Parliament to ensure its objectiveness is not questioned. The Committee also recommended a Service Commission to be set up for the purpose of appointing EC’s own officers and create a specialised scheme of service.
There are existing laws that criminalise bribery, treating and unauthorised expenditure during election campaigns. The definitions in the law are clear and well-defined. Section 10 of the Election Offences Act prevents attempts to bribe voters or accept bribes. Section 8 makes it an offence to provide food, drinks, refreshments or provisions to influence a voter. Section 15A prevents any person incurring expenses on behalf of a candidate in efforts to campaign for the candidate. Section 19 also makes it an offence for candidates to spend in excess of the maximum expenses limit after the date of publication of the notice of the election in the Gazette. Section 20 makes it illegal to pay for the hire, use or borrow of “vehicles, vessels or animals of transport of any kind whatsoever or railway fares, or otherwise, or …the use of any house, land, building or premises…” Yet these are violated with impunity.
There are no existing laws or structures governing political parties’ income and expenditure. There are also no clear election laws that forbid the use of government machinery for election campaigning. While this may come under the definition of corrupt practice in the Penal Code, this has never been enforced and the Election Commission has made it clear it does not believe this is an offence.
As seen in the 2016 Sarawak state elections and the Sungai Besar and Kuala Kangsar by-elections, bribery, treating and money politics continue to be widespread during elections, with little enforcement by the Election Commission 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 programs during campaign events are a daily occurrence during the campaign period 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.
BERSIH 2.0 adopts and endorses the proposals of the G25 Working Committee on Political Financing (See Appendix 1), including the following:
- The EC should take over the role of registering and regulating political parties, a function currently under the Registrar of Societies. The Political Parties Division should take over registration and oversight of political parties.
- 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 RM3000 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.
The Enforcement Teams established under Section 27 of the Election Offences Act must be fully equipped with the resources, training and power to enforce election laws. All reports of bribery and corruption must be investigated by the enforcement team. The enforcement team must work closely with the police to stop any unauthorized spending, cash bribes, treating, the giving out of contracts and the misuse of government resources for election campaigning.
As recommended by the Parliamentary Select Committee on Electoral Reform, “additional posts should be created in order to set up a special enforcement team under the Election Commission to enforce laws that are under the purview of Election Commission without depending on other enforcement authorities.”
The Election Commission 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.
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.
BERSIH 2.0 continues to advocate that the Code of Conduct developed for GE13 be adopted for GE14 (See Appendix 2). As in India, it should also be made a clear election offence to use government machinery and resources for political campaigning, regardless of if it is during the campaign period or not.
Citizens that are eligible to vote must currently proactively register to vote in order to be added to the electoral roll. Registration can be done at any computerized post office, Election Commission branches, local district offices and by any accredited Assistant Registrar Officer (ARO). There are currently 12,160 AROs accredited by the EC and 11,959 of these AROs are civil servants.
The Electoral Roll is updated and gazetted every quarter. However, the process is subject to delays and inconsistencies. In reality, it can take up to six months for new voters to be added to the electoral roll. This means that those who turn 21 during an election year are unlikely to be registered in time to vote.
Following the Election Commission’s decision post-GE13 to cut the number of Assistant Registrar Officers in the country and limit the availability of registration forms, there is an even greater need for AVR. Since Quarter 1 of 2013 until Quarter 2 of 2016, only 795,000 people had registered as new voters. The nett increase has only been 354,000 voters since GE13. This is well below the expected 4.2 million target of eligible voters who were unregistered in 2013.
Qualified citizens should be automatically registered to vote upon reaching the age of 21.
Many developed countries that have a national register of citizens, including Norway, Denmark, Finland, Sweden, France, Germany, Austria, Belgium, Italy, Estonia, Slovenia, Switzerland, Iceland, Israel, Argentina and Peru have automatic voter registration.
The National Registration Department (NRD) already has the requisite information on Malaysian citizens which can be used for the purpose of automatic registration of voters.
The NRD database is already used by the Election Commission to more effectively remove names of deceased persons from the electoral roll. In February 2012, it was announced that, through the Agency Link-Up System (ALIS), the Election Commission would be able to immediately remove deceased voters from the electoral roll once the NRD’s database had been updated.
Similarly, this process can easily be used to register voters once they reach the age of 21.
Automatic voter registration is not the same as “compulsory voting”. This confusion has been repeated by the Election Commission and politicians alike, since 2010 until today. While voters are automatically added to the roll, they still have the choice of whether to cast their vote or not.
Automatic voter registration would require a constitutional amendment to Article 119(4)(b) to change the definition of “qualifying date”. It would also need changes in the Election (Registration of Electors) Regulation 2002.
The evidence on the flaws in the electoral roll have been exposed and confirmed. The Royal Commission of Inquiry on Immigrants in Sabah confirmed there were non-citizens on the electoral roll. Using the data from the election petition for the Likas seat in 2000, BERSIH 2.0 can confirm those doubtful citizens are now registered as voters throughout the country.
The Malaysian Electoral Roll Analysis Project (MERAP) has also found thousands of inconsistencies in the electoral roll that cannot be down to coincidence. MERAP has found the following problems with non-postal voters on the electoral roll (See Appendix 3):
- Voters with the same name, same date of birth and almost identical IC numbers;
- Voters with the same name and same address;
- Voters with no address;
- Many voters registered in one address;
- Stuffing many voters into one dubious address;
- Sabah Royal Commission of Inquiry (“RCI”) voters;
- Voters deleted and added to the electoral roll without being included in the public display;
- Fraudulent registration of voters;
- Multiple parliament and state constituencies assigned to a single household.
For postal voters there are voters that appear as both an ordinary voter and a postal voter in the electoral roll.
- A complete audit of the current electoral roll is required, with special attention given to Sabah, to ensure:
- Only citizens are present;
- There are no duplications of voters, in particular of military and police personnel;
- All voters are registered in a verified address;
- Repeal Section 9A of the Elections Act to allow challenges to the electoral roll in court.
- Illegal alterations of the electoral roll or attempts to add voters to the electoral roll illegally should be made an election offence.
- The establishment of an Independent Electoral Roll Auditing Committee, which authorizes corrections of errors in the electoral roll.
- The electoral roll should be made available as an electronic database for a minimal fee, but a heavy penalty should be imposed for abuse and distribution of personal data contained in the electoral roll for commercial reasons.
Some of the most opaque procedures in Malaysia’s elections are those related to advance and postal voting. In 2013, the Election Commission allowed overseas Malaysians to vote, but there has been limited information on how overseas Malaysians can register and apply to be overseas voters. There are also concerns the procedures provide opportunity for fraud to occur.
Specific concerns relate to the eligibility of absentee voters, storage and transportation of ballot boxes in advance voting, access for polling and counting agents and the possibility of voters appearing both as advance voters and ordinary voters.
BERSIH 2.0’s proposals include making all absentee voting optional and expanding absentee voting to East Malaysians working and studying in West Malaysia and vice versa. The processes in absentee voting should be reformed to improve accessibility, efficiency and transparency.
- The eligible absent voters are those who apply for absentee ballots prior to dissolution of Parliament and must be from the following categories:
- Military and police personnel;
- On-duty civilians, who will be limited to those with election-related duties on polling day, including Election Commission officers and media personnel;
- Out-of-region civilians, who are registered to vote in one of the three regions of Malaysia (Sabah + Labuan, Sarawak and Peninsula Malaysia), but will be in another region on polling day; and
- Overseas advance and postal voters.
- Postal voting will ONLY be limited to overseas voters:
- where they are in countries without any designated overseas polling stations (i.e., no Malaysian embassies or consulates); and/or
- they have to travel to another country to vote; and/or
- they are 1000km away from the nearest polling station.
All absentee voting will take place one day before the national polling day.
- Voting for absentee voters will be as follows: a) Domestic and Overseas absentee voters will be advance voters and ballot counting will take place at the close of advance polling day; and b) ONLY overseas absentee voters who have no access to designated overseas polling stations will be postal voters.
- Domestic postal voting will not be available as EC has authority and easy access to local resources in already established polling stations and managing operation for both advance and ordinary voting. As compared to overseas voting, EC will have limited resources available and as the diaspora is spread thinly in some countries, this will make it more challenging to only have advance voting. By offering overseas postal and advance voting, it is providing more option as alternative to overseas voters.
- Polling Agents, Counting Agents and Booth Agents shall have free access to all advance and absentee voting polling centres.
- Counting of votes will be done at the close of advanced polling at the polling station. It will be done in the same way ordinary votes are counted, with copies of the tally forms given to the counting agents and faxed to the tally centres in each respective constituency. For overseas votes, advance and postal ballots will be counted at the embassies or consulates or overseas polling stations designated by the EC.
- All ballot boxes must be sealed and signed by the relevant candidates’ agents at the end of the advance polling day.
- The results of all absentee votes will be counted and announced at the close of polling on election day.
A full, detailed proposal on Absentee Voting can be found in Appendix 4. This proposal is adapted from a proposal developed by Global Bersih, Tindak Malaysia and MyOverseasVote (MOV).
In GE13, 18 international observers were invited to monitor the elections on polling day. These observers only came from the ASEAN countries of Cambodia, Indonesia, Thailand, Myanmar and the Philippines, as well as two ASEAN Secretariat members. They only observed polling day and visited limited, pre-approved polling stations accompanied with Election Commissioners. None of these international observer reports were made public.
There were 17 domestic organisations that observed the election process, but the observation was considerably restricted. Observers were not able to view the postal voting process with respect to EC workers and media workers in its entirety and were not able to verify the process of scrutinizing the ballot boxes in their “secured locations” between early voting day and tabulation day. On polling day, observers were not able to be present in the polling room to view the process of issuing ballots and balloting and observers were prevented from freely selecting the locations of vote counting by the EC. Only three observers were allowed per parliamentary constituency.
BERSIH 2.0 demands that international and domestic observation adhere to international standards as outlined by the ACE Project:
- Adequate time period. Observer missions should have enough time to get organized and observe the pre-election (such as candidate and if possible voter registration), and the post-election phases (counting of the votes, consolidation of the results and resolution of major disputes, if applicable).
- Adequate resources. Effective missions require enough qualified observers and the means (communications, transportation, interpreters) to help them perform their work properly.
- Qualified observers. To ensure that their work has credibility, observers should be qualified and trained.
- Comprehensive coverage. Observers should observe the electoral process as thoroughly as necessary to be able to make a credible judgment. Most effective are large-scale checks covering the entire electoral process, performed nationally rather than regionally, and including all regions rather than only problem areas.
There should be open and public applications for accredited observers, both international and domestic. The selection observers should be based on their resources and experience in election observation. Election observers should also be non-partisan and have no active members or donors of political parties in senior positions. The observer reports should be available to the public.
The Federal Constitution has clear provisions for the drawing of election boundaries to ensure fair boundaries.
Section 2(c) of the Thirteenth Schedule enshrines the principle of one person, one vote, one value by stating all constituencies within a state should be approximately equal in size, with allowances given for rural areas.
Section 2(d) of the Thirteenth Schedule states that there should be regard given to the maintenance of local ties. This ensures constituencies don’t divide up communities and is designed to prevent gerrymandering.
The process of redrawing the election boundaries can be carried out after eight years from the last delineation exercise or when there is a change to the number of seats under Article 46 of the Federal Constitution.
The past delineation exercises have failed to fulfil the provisions in the Federal Constitution. Constituencies within the same state can vary from 37,000 voters to 150,000 voters. This occurs in urban and well-developed states such as Selangor.
Even in states where there is a clear urban-rural divide, some rural areas have much larger numbers of voters than more urban areas. For example, in Sarawak, the 2015 delineation exercise put 31,000 voters in the very remote constituency of P220 Baram, but only 18,000 in P207 Igan.
- The EC should re-do its delineation proposals in line with the Federal Constitution, requiring all constituencies in a state to be approximately equal in size.
- With an allowance given for rural constituencies, there should be a maximum deviation of +15% and -33% from the state average for constituency size.
- Article 46 of the Federal Constitution should be amended so the number of seats allocated per state is reflective of the number of voters in those states. In order to protect the rights of Sabah and Sarawak, additional seats should be allocated to the states in the Dewan Negara.
BERSIH 2.0 has submitted a detailed proposal to the Human Rights Commission of Malaysia (SUHAKAM) on the human rights implications of the current delineation exercise and our recommendations. The submission, with amendments, is in Appendix 5.
From 1955 to 1969, Malaysia enjoyed a campaign period of at least 35 days. This dropped sharply from 1974 onwards, with the campaign period in 2004 limited to just 8 days. The campaign period in GE13 was 15 days, an improvement on previous years.
However, a longer campaign period would allow voters more time to gather information and deliberate on the candidates. Three weeks is a minimum for the people to be able to assess those putting themselves forward as elected representatives.
A Code of Conduct for Media during elections should be developed by the Election Commission, in consultation with media outlets, civil society and journalists. This code should include:
- Granting equal opportunity and treatment to the various candidates;
- Promoting the dissemination of news based on concrete facts;
- Ensuring impartiality and independence in covering the facts;
- Refusing gifts, favours or special treatment from candidates or their representatives, and refrain from making promises on the contents of a press coverage;
- Excluding any attempts to interfere in coverage by political parties, candidates or government agencies.
The Parliamentary Select Committee (PSC) on Electoral Reform (ER) with its 22 recommendations are meant to restore public confidence in Malaysia’s elections. The long-term reform to put into place an alternative electoral system, together with creating an enabling environment with electoral reforms, will reduce systemic barriers to representation and participation, especially for women and marginalised communities.
There are calls worldwide to reforms the first-past the post (FPTP) electoral system – due to its ‘winner-takes-all’ nature system has ‘systematically penalised parties that are either overly concentrated or overly dispersed… and therefore reducing the choices that voters have in the electoral market.’ The “winner takes all” system has denied the majority with the popular vote from forming the government as evidenced in the GE13 results. BN secured 5,237,699 votes (47%) and won 133 seats (60%) as compared to the opposition which garnered 5,623,984 votes (51%), but only won 89 parliamentary seats (40%).
The ACE Electoral Knowledge Network also pointed out that, ‘the FPTP system excludes minorities… [and] women… [because] as a rule, … [and women] are often less likely to be selected as candidates by male-dominated party structures.’ With the 14th General Election scheduled to happen on or before 24 August 2018, the time is ripe to have wider consultations and implement alternatives to FPTP and put into place electoral reforms, and affirmative measures such as gender quotas which can better facilitate women’s involvement in Malaysian politics. The recommended Parliamentary Select Committee on Electoral Reforms will be tasked to speed up the long-run and immediate reforms.
- Under the recommended Parliamentary Select Committee on Electoral Reform, establish consultations to develop a plan and timeline to implement an alternative electoral system within 12 months. This includes a move to improve or change the current FPTP system to a mixture of FPTP and Proportional Representation (PR) or a strictly PR system.
- Implement affirmative measures to expand representation such as the party list members with gender quotas.
The aim of these guidelines, that accord with accepted international conventions, is to ensure that during the caretaker period the Federal and State Governments conduct themselves appropriately so that, although the on-going business of government service and administration continues, major decisions and actions must be avoided so that they do not bind an incoming government. These guidelines serve as broad guidelines. They may be supplemented by documents that contain more specific information that may be found at the Australian Capital Territory 2012 General Election on Guidance on Caretaker Conventions and London Cabinet office on General Election Guidance 2010.
The following guidelines will apply to a caretaker government:
- From the time of the dissolution of Parliament or State Assembly until the time the incoming government takes office, the Federal government and State government shall be a caretaker government and shall not:
- 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 in any form whatsoever or promises thereof;
- 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.
- The caretaker government whether at the Federal or State level shall not 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:
- members of the Federal government or members of a State Executive Council shall not 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;
- Federal or State government machinery, resources, transport and personnel shall not be used in furtherance of the interests of the caretaker government and, in particular, no ministry, department, agency or other instrumentality of government or of a government-linked corporation shall be directed or permitted to hold functions or activities in conjunction with any electioneering work or campaigning activity;
- public places and facilities shall not be monopolised by the caretaker government and other parties and candidates shall be allowed the use of such places and facilities on at least the same frequency and on the same terms and conditions by which they are used by the party in power;
- the caretaker government shall not, and shall ensure that public servants and authorities under their purview and control do not, use monies from the federal or state consolidated funds to issue advertisements in the newspapers and other media;
- the caretaker government shall ensure free and fair access to free-to-air radio, television and other broadcast media;
- the caretaker government shall not, and shall ensure that public servants and authorities under their purview and control do not, use monies from the federal or state consolidated funds for the purposes of holding or organising rallies or meetings;
- whilst it is the right of public sector employees to participate in the political process they must do so in their private capacity, avoiding any conflict of interest and without displaying their political affiliations while at work;
- members of the Federal government or members of the State Executive Council shall not enter any polling station or place of counting except in their capacity as a candidate or voter or authorised agent; and
- the caretaker government shall ensure and is responsible for the security of all citizens equally, and shall ensure that all police and enforcement officers shall act without fear or favour in providing such security.
- Voters with the same name, same date of birth and almost identical IC numbers;
MERAP first discovered this issue by reviewing the DPI as at Q3 2011. While some names may have been removed during subsequent quarterly updates, some suspicious names discovered still remain in the electoral roll.
- Voters with the same name and same address;
- Voters with no address
Summary as at GE13 – up to 29.3% or 3.9 million voters have either blank or no street address in the address details
Examples of blank addresses:
Example of blank street details and only a house number:
- Many voters registered in one address;
Extract from supplementary electoral roll display for Q4 2016
- Stuffing many voters into one dubious address
8 voters are registered in the address No 12, Jalan 4A/27A, Seksyen 2, Desa Setapak, Wangsa Maju, which happens to be a Mamak Restaurant
- Sabah Royal Commission of Inquiry (“RCI”) voters
Sample of 2 P2 category voters
- Voters deleted and added to the electoral roll without being included in the public display
61 voters found in final roll for GE but missing in Gazetted Q4 2012 ER (extract from full list), print screen of SOR website for the first 3 names accessed in July 2013 is attached)
- Fraudulent registration
This is a police report of the complainant
Despite the police report being lodge, her record is still appearing in the ER
- Messing up parliament and state assemblies of household.
Same address same family name and 2 separate parliament and state assembly constituencies for 1 family.
- Voters that appear as both an ordinary voter and a postal voter in the electoral roll
- This is a submission made by the Coalition for Clean and Fair Elections (BERSIH 2.0) for the consideration of the Election Commission (“EC”).
- We propose comprehensive reforms to current voting procedures for Malaysians living abroad and domestic absentee voters.
We call upon the EC to implement these reforms before the 14th General Election.
- In the 13th General Election (“GE13”) the postal vote was, for the first time, accorded to Malaysian citizens overseas who previously did not fit the description of an “absent voter” as defined in Regulation 2 of the Elections (Registration of Electors) Regulations 2002.
- We applaud the EC for rightfully extending the vote to more Malaysians. As this was the first postal voting exercise of its kind, there were understandably logistical hurdles and instances of miscommunication that we hope will be avoided at the next general election.
- In the spirit of offering a solution, we propose to amend the electoral regulations and introduce new practices so as to improve the structure put in place during GE13.
- We firmly believe that the eligibility criteria for the overseas vote should be more inclusive to enfranchise more Malaysians living abroad and that the number of polling stations overseas should be increased. Additional procedures are also desirable to ensure voter secrecy, a more transparent election process and an election outcome that is seen as legitimate among most voters.
- In GE13, as recommended by the Parliamentary Select Committee on Electoral Reform, domestic absentee voting was expanded to include media personnel. The Election Commission also introduced indelible ink to prevent advance voters from voting twice. While there were weaknesses in the implementation, we recognise the steps made to improve the integrity of absentee voting.
- This proposal looks to build upon the efforts made before GE13 to further strengthen the absentee voting system and improve public confidence in the process.
- In particular, we look to introduce counting of ballots at source, removing discrepancies from the electoral roll and changing the eligibility criteria for absentee voting.
- We recommend to have only advance voting in Malaysia, and, for inclusivity, advance and postal voting for overseas absentee voters.
- We also believe there is an urgent need to improve voter turnout in Sabah and Sarawak, which had the lowest voter turnout out of the states in GE13. There should be options for voters registered in Sabah and Sarawak to vote from Peninsula Malaysia and vice versa.
- We propose five qualifying categories of absentee voters: military, police, on-duty civilian, out-of-region civilian and overseas voter. On-duty civilian voters will be limited to those with election-related duties on polling day, including Election Commission officers and media personnel. Out-of-region civilian voters are those that are registered to vote in one of the three regions of Malaysia (Sabah + Labuan, Sarawak and Peninsula Malaysia), but will be in another region on polling day.
- Absentee voting will not be compulsory. The voting for absentee voters will be as follows: a) Domestic and Overseas absentee voters will be advance voters, votes are counted at designated polling station and will take place one day before polling day; and b) ONLY overseas absentee voters who have no access to designated overseas polling stations will be postal voters and their ballots will be counted on the same day as advance voters.
- Postal voting will ONLY be limited to overseas voters:
- where they are in countries without any designated overseas polling stations; and/or
- they have to travel to another country to vote; and/or
- they are 1000km away from the nearest polling station.
- The results for all absentee voters, in Malaysia and overseas, will be announced after the completion of the vote count on absentee polling day.
- Those voters that are in one of the qualifying categories must opt in to be absentee voters. Spouses of service personnel will not qualify as absentee voters unless they qualify in one of the five categories. Spouses can vote as civilian voters in the area they are based or return to their home constituency to vote.
- Our proposals therefore seek to address these five core issues:
(a) Enfranchisement of Malaysians living abroad;
(b) Enfranchisement of Sabahan and Sarawakian voters living in Peninsula Malaysia and enfranchisement of Peninsula Malaysians living in Sabah or Sarawak;
(c) Voter secrecy;
(d) Transparency and security in the election process;
(e) Legitimacy of election outcome.
- To register as overseas postal voters in GE13, voters who were already on the electoral roll had to submit a completed Form 1B by facsimile or email to the EC in Malaysia. The respective overseas missions then informed voters whether their applications were accepted or rejected. Information was then relayed to voters via the EC’s website as to where and when overseas voting would take place in their respective countries of residence.
- Advance voting took place over a single day and was held 5 days (1 May 2013) before national polling day in Malaysia, and it was 6 days (30 April 2013) ahead for overseas Malaysians. The ballots were kept in a sealed sack and, at the close of polling, were sent via diplomatic courier to Malaysia to be counted. This meant that ballots for advance voting were held over a period of 5 or 6 days respectively. There were complaints from candidates that they were not informed when the advance ballot boxes were moved prior to national polling day.
- Party observers were allowed to observe within the polling premises but were not allowed to witness the sealing of the sack containing ballots. As for party agents, there was no opportunity for the exercise of such a role during the electoral process and therefore no party agents were able to account for all the ballots that were issued and returned.
- While civil servants, students and their respective spouses living abroad, as well as EC workers on duty on polling day qualify as postal voters (recent amendments to EC ruling has been extended to include members of the press), the bulk of the postal voters include army personnel and their spouses and members of the police force, numbering approximately 250,000.
- In GE13, 97,000 voters were inserted as advance voters on the day of advance voting. This included over 1,000 new advance voters in constituencies such as Kuala Kedah and Kapar.
- Section 16 of the Elections Act 1958 gives the EC power, with the approval of the Yang di-Pertuan Agong, to make regulations for the conduct of elections and for all matters incidental thereto. We therefore strongly urge the EC to consider the following amendments to such regulations.
- An estimated 1,481,202 Malaysians were living in other countries as of 2010; as these can be reasonably assumed to be mostly adults, overseas Malaysians represent a not insignificant group of the voter-age population. The large majority of these, over 1 million people, were located in Singapore.
- The EC did not provide advance voting in Singapore, Brunei, the Indonesian province of Kalimantan, or the southern provinces of Thailand in GE13 because it assumed that Malaysians located in these countries would be able to return to their hometowns to vote easily. In fact, workers in these countries may live in parts of Malaysia that are far from the border of the respective host country such that it could be more logistically difficult for a labourer working in Singapore to return to the hinterland of Sarawak, than for a professional working in London to fly back to Kuala Lumpur.
- The omission of the countries above from overseas advance voting is therefore arbitrarily based on sweeping assumptions.
- Furthermore, in the case of Malaysians residing in Singapore, voters were compelled to carry out voter mobilization activities that were interpreted as disorderly conduct by the Singaporean authorities, thus straining bilateral relations.
- “If there are no changes in the law by the next general election, continued voter mobilisation activities are likely and may strain bilateral relations with Singapore. During GE13, for instance, some Singapore-based Malaysians fell foul of the city- state’s strict public assembly laws around cause-related public activities, which saw the authorities on both sides of the causeway issuing statements and accusing each other of domestic political inference (sic) [interference].”
- A paper written for the International Foundation for Electoral Systems (IFES) states that “the most commonly advanced argument [for enfranchising the diaspora] holds that citizens living abroad often pay taxes or provide remittances to their home states and should therefore have some say in how these resources are collected and re- distributed.”
- In fact, Malaysians overseas remitted USD $1.32 billion in 2012, equivalent to RM 4.19 billion at 2012 exchange rates; those in Singapore alone remitted USD $927 million or RM 2.94 billion.
- As citizens who maintain ties with Malaysia and are still interested in its matters, it is unfair for overseas Malaysians to have to bear considerable costs in order to exercise their right to vote.
- Sabahans and Sarawakians who move to West Malaysia retain strong ties to their hometown in East Malaysia. They still consider their state as their home and have stronger ties to their home constituency than they do to their place of residence in the Peninsula. There is increasing recognition of the issues of Sabah and Sarawak need to be considered as distinct from the Peninsula. As such, there should be recognition of the rights of Sabahans and Sarawakians to vote for their state and federal representatives while residing in Peninsula Malaysia.
- Similarly, to protect Sabah and Sarawak as distinct entities from Peninsula Malaysia, West Malaysian voters that reside in Sabah and Sarawak should be given the option of voting for their representatives in Peninsula Malaysia. West Malaysians should not be voting in Sabah or Sarawak if they feel they have no strong ties to the East Malaysian states.
- The high costs of flying to and from East Malaysia and the time it takes are big impediments to these voters. Sabah and Sarawak were the two states with the lowest voter turnout in the country in GE13 with 79% and 75% respectively.
- According to our estimates, there are at least 150,000 registered voters in Sabah and Sarawak living in West Malaysia. We believe access to absentee voting will significantly boost voter turnout in these states.
- During the 11th Sarawak State Elections in 2016, we received complaints of voters from Peninsula Malaysia voting in the Sarawak State Elections. While these voters can not be faulted for changing their voting address to Sarawak for the sake of convenience, they should be given the option of voting for their state and federal representatives in West Malaysia if that is the community they have strongest ties with.
- Given the large number of overseas Malaysians, BERSIH 2.0 recommends to provide advance and postal voting as options to enfranchise them. Establishing a method of counting absentee votes at source will garner well for transparency and accountability and eliminates mismanagement of the ballot boxes.
- During GE13, advance voting was conducted within police and military compounds and accredited observers Merdeka Center made the following observations:
- “In one location, photographs of every voter were taken by an unknown officer bearing access pass from the EC. At two locations, police officers guarding the entrance to polling rooms were seen discretely recording the police registration numbers by sequence of attendance. Similarly, one location also had an online system linked directly to the police HQ in Bukit Aman (as per observers’ inquiry with the police officer on duty) again, where registration numbers of voting officers were keyed in according to sequence.”
- To maintain voter secrecy, voters’ names are never to be recorded alongside ballot serial numbers.
- There must be strict enforcement of existing laws on voter secrecy, in particular Section 5 and Section 26 (1)(e) of the Election Offences Act. Any individual attempting to record the sequence of voters within polling stations should be removed and handed over to the police on duty.
Transparency and Security
- There are continuing concerns over the security of ballot boxes between the day of advance voting and polling and counting day. Merdeka Center expressed concerns in their report on GE13, noting their observers were not given access to observe these holding locations and complaints were made by party agents that they had been denied access.
- We propose to avoid the concerns over ballot security, advance voting should take place only one day before polling day. This removes concerns over storage of ballots and gives a longer campaign period for absentee voters to decide who to vote for.
- The absentee voting polling stations are expected to be larger than ordinary voting centres, where voters will vote by state. There will be 16 ballot boxes for parliamentary contests and 13 ballot boxes for state contests.
- Overseas postal ballots will follow the due process as prescribed in the election regulations and the ballots will be sent to eligible overseas postal voters at least 20 days before advance polling day. The ballots must reach the designated embassies or consulates on the day of the advance polling day and before 5 p.m.
- Absentee voting should not take place in military or police compounds. Additional schools or community halls should be gazetted as absentee polling stations.
- We further propose to allow party agents, who are elected by political parties, candidates or independent candidates to wield the same authority and powers as their counterparts would at polling stations during ordinary polling. These agents should be allowed to monitor the receipt and opening of ballot sacks/boxes and to monitor the sealing of ballot sacks/boxes. These agents also have the option of placing their own tamper-proof locks on the ballot boxes if they wish to do so [see Attachment 1: proposed new Regulation 10a(3)].
- Counting of votes is to be done at the close of polls on the day of absentee voting, at the absentee voting polling locations in the presence of the party agents. The tally form is to be filled in to account for every ballot that has been issued and received and signed copies are distributed among the State Elections Officer, the presiding officers, the candidates and their agents.
|30 days before the dissolution of Parliament||Prime Minister announces the date of dissolution|
|20 days before the dissolution of Parliament||Close of applications for absentee voters|
|15 days before the dissolution of Parliament||Updated Absentee Voting Electoral Rolls are displayed and objections allowed (only affected votes may object).|
|7 days before the dissolution of Parliament||Objection period for Absentee Voters Close|
|3 days before the dissolution of Parliament||Gazette of the absentee voters’ electoral roll.|
|Dissolution of Parliament|
|Publication of Notice of Election in the Gazette|
|Public announcement of the National Electoral Roll to be used for the General Elections, including ordinary and absentee voters. This shall be made available to the public at no costs.|
|Final list of domestic and overseas polling station for all absentee voters and list of the collection polling stations for overseas postal ballots.
These lists shall be distributed to all candidates, political parties, candidates’ agents and election observers once Parliament is dissolved.
|Day 1||Nomination Day|
|The National Electoral Roll and lists of Absentee and Ordinary Polling Stations to be distributed to all candidates and political parties. This information should be made available to the party agents and election observers.|
|Day 3||Prepare and send overseas postal ballots to be sent by EC to designated overseas polling stations.
Process to be be attended by persons as stipulated under the amended s5(1).
i. Check number of ballots issued. Ensure those sent out tally with the number of postal voters.
ii. Sign on the bag or bags that will be sent out.
iii. Form 13 to be given to all parties and copies will be made available by the overseas returning officer to the specified overseas parties present.
|Day 6||Receipt and resend of overseas postal ballots by overseas returning officer. Process to be attended by the overseas returning officer, candidate/party agents, and election observers are as follows:
i. Check receipt and resend ballots to overseas postal voters. Ensure those sent out tally with the list of postal voters.
ii. Room to safe keep the ballot box or boxes shall have the security measures as recommended under points 60-62 (p63-64)
iii. Form 13 will be verified by all parties.
|Day 20||End of Campaign period for absentee voters
14 days for postal voters to receive and send back in time to be counted on the Advance Polling Day.
|Day 21||Absentee Polling Day
[set one day before National Polling Day]
|Prior to 5 p.m.||EC, candidate/party agents, and election observers to be present to observe the receipt of ballot papers.
Return of postal ballots before 5 p.m.
|6p.m. onwards||Sorting and counting of all absentee ballots at advance polling stations
Announcement of absentee ballots
|Day 21||End of National Campaign period|
||National Polling Day|
- Absentee voting applications should be made available prior to the dissolution of Parliament as the final absentee electoral list has to be gazetted. Figure 1 recommends a timeline for the application as absentee voters, announcement, objection and gazette of the final absentee electoral roll to be utilised for the elections.
- Once voters have applied to be absentee voters, the online electoral roll and all copies of the electoral roll must be updated to reflect they are absentee voters. This shall be announced on the day when Parliament dissolves.
- To prevent fraudulent applications of absentee voters, voters should be given at least one week to file objections to their absentee voting status, by appearing at Election Commission branches or Malaysian embassies overseas. Only the relevant person may object to their own absentee voting status.
Update and Public Display of Electoral Roll for Absentee Voters
- Once the list of absentee voters has been confirmed, the polling stations for all absentee voters by state (within Malaysia) and by country (overseas) should be gazetted and displayed, along with the times the polling stations are open. The absentee voter roll must be public and given to all candidates along with the electoral roll for their constituency to ensure there are no duplicates. For service absentee voters, the electoral roll should include both the military/police IC number and their civilian IC number to ensure there are no duplicates.
Overseas Postal Voting
- The Returning Officer will send to every postal voter the following documents:
- Two ballot papers for Parliament and State respectively (except for Sarawak state and federal territories)
- A Revised Form 2 (See Attachment 2)
- An Envelope A and
- An Envelope B and
- A certification that s/he is a postal voter and
- A seal for Envelope B, which is to be signed by the voter and placed over the Envelope opening.
Form 2 has been revised to omit the ballot serial number as there should be no recording in the form sent to the voter. Voters will need to follow the instructions and return documents as mentioned in points a) – d) respectively to their designated polling station (i.e. embassies or consulates) before 5 p.m. on advance polling day. The ballots will be counted together with advance ballots. Postal voters will not vote in person on advance polling day.
Persons entitled to be present at issue of postal ballot papers and opening of postal voters’ ballot boxes.
[Amendment to Elections (Postal Voting) Regulations, 2003}
- s5(1) No person other than—
- the returning officer, the overseas returning officer and their clerks;
- the candidates;
- a domestic and overseas agent or person appointed by a candidate to attend in the election agent’s place;
- member or officers of the Election Commission; and
- accredited Election Observers,
may be present at the proceedings on the issue of postal ballot papers or the opening of postal voters’ ballot boxes.
(2) If a candidate or party appoints a person under s5(1)(c), he or it shall give notice of the appointment to the returning officer, stating the name and address of the person so appointed at any time during the issue of the postal ballot papers or the opening of the postal voters’ ballot boxes, as the case may be.
(3) If the representative dies or becomes incapable of acting, the candidate or party may appoint another person in his place and shall forthwith give to the returning officer notice in writing of the name and address of the person so appointed.
Despatch of overseas postal ballot papers
- The returning officer shall, at the proceedings on the original issue of postal ballot papers, place all envelopes addressed to overseas postal voters which are to be sent via a specified consular officer in a packet sealed and affixed with security tapes. These ballots shall be sent to that consular officer via the Election Commission. The process will be observed and signed by the persons as specified in the proposed amendment of Election Regulation s5 (1). The voter application forms for absentee voters must be available for inspection and comparison during the issuance of ballots, to ensure the correct ballots are sent to the correct voter and to the correct address.
- Upon confirmation on the issuance of postal ballot papers, Form 13[Sub-regulation 24(1)] Ballot Paper Statement should be filled, signed by both returning officer and the candidates’ agents and each will have a copy respectively. This information shall be made available to the overseas returning officers, polling agents and election observers.
- Upon receipt of the sealed packets from the Election Commission, the overseas returning officer shall give the agents in his location no less than 24 hours’ notice of the time and place of the opening of the sealed packets.
- The overseas returning officer shall, in the presence of the agents, examine the seal to ensure there has been no tampering, open each sealed packet and note the number of envelopes addressed to overseas postal voters in respect of each constituency and despatch such envelopes to the overseas postal voters via the local postal system or any independent courier approved by the Election Commission for that purpose.
Receipt of overseas postal ballots
- Every such ballot box shall be shown open and empty to the agents present and shall then be locked by the returning officer and affixed with security locks and signed by the returning officer and the agents present who desire to sign/mark on the security locks.
- There shall be ballot box or boxes that shall be numbered and marked “overseas postal voters’ ballot box”.
- Since overseas postal ballots are returned over a period of 14 days, it is absolutely crucial that tight security is established to ensure greater transparency. BERSIH 2.0’s recommendation is as follows:
- The returning officer officer shall make arrangements for the safe custody of every such ballot box or boxes.
- The safe room shall also be made available for inspection by candidates’ agents and election observers.
- Installation of CCTV to ensure a total recording of whoever goes in or out of the room.
- A log book should also be made available to record the purpose of the visits.
- The CCTV recording and log book shall be made available at all times for inspection by candidates’ agents and election observers.
- Upon receipt of envelope B from postal voters before 5p.m., the overseas returning officer shall immediately place it unopened into the postal voters’ box or boxes which has been locked, in accordance with revised regulation 10a [See attachment 1]. These locked boxes shall be opened when counting begins and counted together with the advance ballots (see Figure 3). The sorting into the various constituencies shall be carried out in the presence of the returning officer, candidates’ agents and election observers.
Absentee Voting Polling Stations
- There should be at least one absentee voting polling station per state in Malaysia to ease travel burdens for voters. For military, police and on-duty civilian voters, constituency-level polling stations should be provided. No voting should be held inside the premise the military and police (see Figure 2) where they will join the advance voters. Additional schools and community halls shall be designated as polling stations.
- Overseas absentee voting polling stations are determined prior to the dissolution of Parliament (see Figure 1).
- Overseas postal votes shall be sent back to polling stations as determined by the Election Commission, which will be defined as the nearest polling station. A final list of these polling stations will be issued and distributed to the relevant parties (see Figure 1).
- BERSIH 2.0 recommends for all postal ballots to be posted to the overseas polling station and counted on overseas advance polling day.
Figure 2: Polling Stations for Advance Voters
|State Polling Stations||Constituency Polling Stations||Designated Overseas Polling Stations||Postal Voting – to the nearest Overseas Polling Stations|
|Overseas Voters||Ö||Ö (only those with no access to designated overseas polling stations)|
Overseas Advance Voting
- Envelope A is to ensure the correct ballot is given to the voter for their constituency. Envelope A should only show the constituency code and the constituency name. The ballot inside the envelope should correspond to that constituency. These envelopes and ballots should be sorted by constituency before voting, in the presence of polling agents. The correct envelope should be handed to the voters at the polling stations. For in-person voting, voters’ identity can be established by their Identity Cards (ICs) as is the case with ordinary voting. For advance voting, Form 2 and Envelope B will not be used.
Counting of Absentee Votes
- Advance voters will mark their ballot, insert it into the envelope and drop it into the correct state and parliament ballot boxes.
- Once polling has closed, all absentee voting envelopes in the ballot boxes shall be divided by constituency. This includes the overseas postal ballots.
- The ballots should then be removed from the envelopes and counted in the presence of counting agents. The tally forms for absentee voting should be filled. These forms should be identical to the existing Form 13 and Form 14, but include all state and parliamentary constituencies in each state. A copy of these forms should be signed by the counting agents and copies given to each of the counting agents present. The forms should then be sent by fax to the central tally centre for each state.
Figure 3: Absentee Polling Day Schedule
|630am-8am||Arrival of envelopes/ballots and sorting of envelopes by constituency|
|Set up of ballot boxes by state – 16 Federal boxes, 13 State boxes|
|Closing for receipt of overseas postal ballots.
|5pm-6pm||Sorting of envelopes by constituency and opening of envelopes|
|6pm-8pm||Vote Counting and results announced|
|8pm||Form 14 and 15 sent by fax to state central tally centre|
Legitimacy of election outcome
- It is important that the absentee advance vote results be announced as soon as absentee polls close in Malaysia as well as for overseas vote results and not afterwards. This is a more transparent approach and will avoid speculation of fraud.
- The modifications that we are proposing to the absentee voting process would greatly increase confidence among Malaysians that the process could not be easily manipulated to benefit any particular political party.
Continuity for Overseas Voting
- We call on the EC to develop and implement systems at all Malaysian overseas missions to allow for registration of all first-time voters, as well as overseas advance voting, on an ongoing basis.
- We draw the EC’s attention to the results of a recent survey of consulates, embassies and high commissions across the world to determine if such services were available. The survey was undertaken by Global Bersih city co-ordinators, who made enquiries at 10 cities: Singapore, Canberra, Melbourne, Wellington, Hong Kong, Chennai, Washington DC, New York City, London and The Hague (Netherlands). Enquiries by co-ordinators were made between August 31 and September 23, 2016. Malaysia’s High Commission in Singapore was the sole overseas mission in the survey to openly and efficiently offer facilities for both voter registration and postal voting to Malaysians abroad.
- We are pleased to note that, after the survey results were published, Malaysians were told they may register as ordinary (first-time) voters in Frankfurt, Germany and Washington DC, USA, and we thank the EC for any role it may have had in this positive development. However, the survey clearly showed mission staff were misinformed, confused and inconsistent about electoral policy in general, and postal voting in particular.
- We therefore petition the EC to direct and oversee efficient and informed systems for voter-registration at all overseas missions, and to make overseas advance voting available at these missions in a timely fashion for all future elections.
- We acknowledge that facilitating voting in more polling locations as well as training more staff to carry out polling and vote counting would naturally incur more costs in the election. However, the cost of implementing such reforms would be more welcome than the cost of an electoral system that is not trusted by the people. We think it would be money well spent.
- We would also suggest that the financial costs of implementing this proposed system may be mitigated by collaborating with civil society on a number of ancillary processes, such as voter registration drives, voter education campaigns and training of election observers and party agents. Fortunately, there are many civil society organizations that would be willing to offer such assistance.
- The absentee voting process during GE13 was not without its hiccups and teething problems. As such, our proposal seeks to refine the process and increase voter confidence in the procedure. We believe that of all other possible options, the mechanism proposed here is the best suited for Malaysia at this point in our history. Therefore, we strongly urge the EC to take a hard look at our proposal and to feel free to discuss it with us openly.
Attachment 1: Amendments to Regulation S10a
Elections (Registration of Electors) Regulations, 2002
[abstracted from “Voting Rights for Malaysian Overseas by Malaysian Overseas Voters – MOV, 16 December 2011]
10a. Provision of overseas postal voters’ ballot box
- The returning officer shall, at the proceedings on the despatch of the envelopes addressed to overseas postal voters, provide a ballot box or ballot boxes for the receipt of envelope B when returned by the overseas postal voters.
- When postal ballots are received, there shall be no fewer than one ballot box for overseas postal ballot papers for elections to the state Legislative Assembly, the Federal Territories and the House of Representatives.
- .. Every such ballot box shall be shown open and empty to the agents present and shall then be locked by the returning officer and affixed with security lock and signed by the returning officer and the agents present who desire to sign on the security lock.
- .. Every such ballot box shall be numbered and marked “overseas postal voters’ ballot box” and with the name of the state or territories and the legislative body for which the election is held.
- .. The returning officer shall make arrangements for the safe custody of every such ballot box.
Attachment 2: Revised Form 2 [Regulations 8 and 12]
Elections (Postal Voting) Regulations, 2003
[abstracted from “Voting Rights for Malaysian Overseas by Malaysian Overseas Voters – MOV, 16 December 2011]
[Regulations 8 and 12]
DECLARATION OF IDENTITY
(Please read the Instructions To The Voter before filling up this form)
I hereby declare that I have received the ballot and the envelope in which it was
enclosed (both of which I now produce). Voter’s name (in capital letters): Voter’s signature/thumb print : N.R.I.C.NO.:
The abovenamed, who is personally known to me, has produced the ballot paper and the envelope referred to above and has signed the above declaration in my presence.
(In capital letters)
INSTRUCTIONS TO THE VOTER [Regulations 8 and 12]
- Before marking the accompanying ballot paper, you must produce to a person Malaysian citizen above the age of 21 to whom you are known who will bear witness to receipt of the following:
- Two ballot papers for Parliament and State, respectively (except for Sarawak state)
- A Revised Form 2
- An Envelope A
- An Envelope B and
- A certification that s/he is a postal voter.
- A seal for Envelope B, which is to be signed by the voter and placed over the Envelope opening.
- You must sign the Form 2 in the presence of the witness.
- You can vote once only and for only ONE candidate for Parliament and State respectively.
- You vote by marking the ballot paper on the right-hand side with a cross opposite the name of the candidate for whom you vote, thus “X”. As voting is a secret, this should be done in absolute secrecy.
- Immediately after voting, you must place the marked ballot paper in the enclosed small envelope marked “A” and close it up. You must then place the envelope marked “A”, together with Form 2, in the larger envelope marked “B” addressed to the returning officer. You must then affix the seal over the opening of Envelope B and sign the seal. Despatch the ballot to the returning officer without delay. The ballot paper, in order to be counted, must be received by the overseas presiding officer not later than 5 p.m. in the afternoon of overseas advance polling day.
- If you are a postal voter, you shall not vote in person on polling day.
Since 2011, BERSIH 2.0 has been undertaking research, advocacy and awareness programs on delineation. The importance of fair election boundaries can not be understated. The drawing of fair and practical boundaries is one of the three key functions of the Election Commission. Poorly drawn boundaries impact not only the effect the results of the election, but determine representation of communities in decision making. It demands a high level of competence, the use of complete and accurate data and consultation with experts in topography and population distribution.
Given the significance of this exercise, public engagement, transparency and impartiality are essential. The Federal Constitution has recognised these necessities as it lays out the necessary processes in the Thirteenth Schedule.
As such, BERSIH 2.0 submits the following report on the current ongoing delineation exercises for Peninsula Malaysia and Sabah, with a focus on the impact on human rights.
- Discrepancies in the Electoral Roll
- According to analysis by the Malaysian Electoral Roll Analysis Project (MERAP), over 30% of the names on the Electoral Roll do not have complete addresses. Many entries are only accompanied by the locality name, the allocated State and Parliament constituencies.
- BERSIH 2.0 recently discovered errors in the system where voters are added to the Electoral Roll. The current process of adding voters to the Electoral Roll is done manually. An officer uses the address provided by a voter to search for the locality name and inserts a voter in the respective State and Parliament constituencies. However, there are thousands of localities around the country with the same name, some in neighbouring constituencies. BERSIH 2.0 has found voters have been incorrectly added to the wrong State and Parliament seats due to human error and the use of an outdated system.
- The Royal Commission of Inquiry on Immigrants in Sabah found there were non-citizens on the Electoral Roll. There are various estimates in the RCI Report on the number of non-citizens on the roll, but the Sabah High Court has accepted evidence of up to 113,000 problematic Identity Cards in Sabah. MERAP has identified these problematic ICs and vote they are now registered to vote across the country, including Selangor and Johor.
- Additional discrepancies highlighted by BERSIH 2.0 and MERAP since 2010 include single addresses with over 20 registered voters and voters with the same name, date of birth and address repeated in the Electoral Roll. There are further discrepancies with military and police personnel using both their civilian and service ICs to register to vote. This evidence was submitted to the Parliamentary Select Committee on Electoral Reform in 2011.
The delineation exercise relies heavily on the accuracy of the Electoral Roll. In order to calculate the number of voters in proposed constituencies, the addresses of all voters must be known. They voters must also be allocated to constituencies with new boundaries with a high level of accuracy. If non-citizens remain on the Electoral Roll, the numbers used for delineation could not be accurate. This is compounded if there are duplications of voters, or voters registered in the wrong addresses.
The rights of citizens to democratically elect their government is impeded if the boundaries are decided by inaccurate addresses and a flawed electoral roll. Outdated systems used by the Election Commission can result in voters being allocated to vote in constituencies that are far from their homes and they would lose the right to choose their local representative.
- Repeal Section 9A of the Elections Act. Section 9A was introduced to prevent court challenges to the Electoral Roll. Despite overwhelming evidence by Royal Commissions, accepted by a Parliamentary Committee and independent expert panels, there can be no legal redress for voters due to this legal provision. To note, this provision was introduced after the Sabah High Court found phantom voters existed on the electoral roll and ordered a by-election be held in Likas in 2001.
- Conduct a thorough order of the Electoral Roll, with specific attention given to Sabah. An independent and permanent Electoral Roll Audit Committee should be established, which is given adequate resources and power to audit the Electoral Roll and make the necessary corrections.
- Implement a modernised system of adding voters to the Electoral Roll, including mapping tools to pinpoint exactly which constituency a voter should be allocated to based on the voter’s full address.
- The delineation exercise should be postponed until this system can be fully implemented. The Election Commission should re-do its proposals based on the accurate information in the revamped Electoral Roll.
- Availability of Public Information
The final report provided to Parliament in the delineation exercise for the state of Sarawak in 2015 was a total of 224 pages. It included complete information on the reasoning given by the Election Commission for its proposals, charts and diagrams on land mass, local ties and the inquiry process. It also included separate A4 maps showing the boundaries of every proposed constituency, including the boundaries of the polling districts.
The Election Commission has made use of this information in formulating its proposals. It also used the details of the Electoral Roll and made considerations based on natural and artificial boundaries, such as rivers and highways.
None of this detailed information has been provided to the public. The maps provided by the Election Commission contain no detailed information such as land mass, roads, rivers or local authority boundaries.
Moreover, the full Electoral Roll is not provided to voters, so they are unaware of whether they and the voters in their community have been moved to a new area. BERSIH 2.0 was able to digitise the maps provided by the EC, overlay them on Google Earth and upload them online. However, these maps can only be approximations given the lack of details in the maps provided by the EC.
The right to access information is enshrined in the Universal Declaration of Human Rights and the ASEAN Human Rights Declaration. It is also integral to freedom of expression and Article 10 of the Federal Constitution. The Federal Constitution makes clear delineation is a public process. In order for the public to exercise their rights in this process, they must be given adequate information.
- As recommended in Section A, the Election Commission should re-do its current proposals. During the preparation of its proposals, it should hold nationwide public consultations, where the input of local communities should be considered.
- Once the proposals are displayed, complete information should be provided, including detailed maps and the full Electoral Roll. All the information should be provided both online and offline.
- The Election Commission should be proactive in spreading awareness about these proposals by holding public engagement activities and encouraging the public to submit their objections. The awareness programs should also make the proposals easy to understand and accessible for the public.
- Procedures of the Public Inquiry
The Federal Constitution requires a local enquiry to be held if a local authority, state government or a group of 100 voters submit an objection to the Election Commission within 30 days of the public display of the proposals.
For the delineation exercise for Peninsula Malaysia and Sabah, over 800 objections were submitted to the Election Commission.
The EC then proceeded to contact the objectors to set the local enquiries.
- The EC arbitrarily rejected some objectors, despite fulfilling the constitutional requirements under Section 5 of the Thirteenth Schedule. The voters of Segambut and Setiawangsa were forced to take the EC to court before the EC reversed its decision.
- The objectors were allowed to bring three spokespersons, and give their presentation within 30 minutes. They were not allowed to be accompanied by a lawyer, despite the provisions in the Commissions of Enquiry Act.
- No media or members of the public were allowed to attend the enquiry, and police guarded the doors of the hall.
- Anecdotal evidence from those who have attended the enquiries indicates the Commissioners treated them as a mere formality with little interest in the substance of the objections. In one case, the EC chairperson advised the objector’s father to ask the objector to complete his studies first before getting involved in proceedings like the objection hearing.
During the enquiry process, the EC showed scant regard for the rights of the objectors and the value of the process. Public engagement in the exercise is fundamental to creating fair boundaries, yet the EC chose to do the bare minimum required of them in the Federal Constitution and in some cases less than the minimum.
- When an objection is rejected, the EC should provide clear reasons for refusing to hold a local enquiry and these must be in line with the Federal Constitution.
- The EC should provide information on how many objections were rejected and the reasons for the rejections.
- The local enquiries should be open to the public and the media. This will boost public confidence in the process and ensure transparency in the process. It will also act as a public education exercise for voters to attend such proceedings.
- Spokespersons at the enquiries should have access to lawyers and interpreters, if necessary.
- The EC should take note of the 2014 Guidelines for Standardization of Public Consultation Procedures, which highlight the need consultations to be have “integrity with mutual respect.” It requires authorities to address stakeholders and the public concern in an honest and forthright way. The process of engagement shall be open, transparent and accountable.
An impact study conducted by Merdeka Center has found the 2016 delineation exercise has rampant gerrymandering in order to benefit the ruling Barisan Nasional coalition. Merdeka Center found two methods used by the Election Commission are:
- an ethnic-based transfer of voters by the shifting of polling districts between constituencies; and
- the identification and transfer of polling districts between constituencies based on their voting pattern in the last General Election.
Merdeka Center found polling districts have been shuffled around based precisely on their voting patterns in the 13th General Election to create more winnable seats for the ruling political party.
In the case of P109 Kapar and P110 Klang, voters have been switched between the constituencies to create ethnic-based constituency communal wards. Previously, both constituencies were mixed seats, with high percentages of various races. With the new proposal, Kapar consists of 68% Malays voters and Klang contains 55% Chinese voters.
In the state constituencies within P110 Klang, voters have been moved around to the benefit of Barisan Nasional with no connection to the requirements under the Thireteenth Schedule of the Federal Constitution. In N46 Pelabuhan Klang, 5 polling districts who voted for Pakatan Rakyat in the Thirteenth General Elections are being moved out to Pakatan safe seats such as N47 Pandamaran and N48 Kota Alam Shah leaving N46 Pelabuhan Klang as a new and likely BN seat. The effect will be to turn a Pakatan marginal seat into a Barisan Nasional marginal seat in N46 Pelabuhan Klang.
Another example of gerrymandering based on race is the EC’s proposal for N49 Seri Andalas in Selangor. The EC’s proposals look to change the seat’s current composition of approximately 39.04% Malay voters, 24.13% Chinese voters and 32.45% Indian voters to a seat of over 80% Malay voters. The 8 non-Malay polling districts proposed to be transferred out of N49 Seri Andalas voted for Pakatan Rakyat in the Thirteenth General Elections.
These examples illustrate the EC acted outside of its authority in taking political and race-based considerations into account when conducting its delineation exercise. It also risks exacerbating racial tensions if the country is divided into electoral constituencies by race. Communal ties will be strengthened and there will be perceived political competition between races. Members of Parliament will be forced to represent the interests of certain races in Parliament instead of looking to advance the interests of their Malaysian constituents regardless of race.
- The EC should re-do its proposals with considerations only given to the conditions in the Thirteenth Schedule of the Federal Constitution, including population density, local ties, accessibility and infrastructure.
The impact of severe malapportionment runs contrary to the principle of one person, one vote, one value. It creates gross inequality in elections, giving power to a small number of voters to determine the outcome of elections, while reducing the vote value of voters in oversized constituencies. It also denies voters in oversized constituencies the right to effective representation in government. A single Member of Parliament now has to represent over 150,000 voters, with the same resources and time as an MP that represents just 20,000 voters. The opportunity for voters to have their interests represented is severely diminished in oversized constituencies.
- The EC should re-do its proposals in line with the Federal Constitution, requiring all constituencies in a state to be approximately equal in size.
- With an allowance given for rural constituencies, there should be a maximum deviation of +15% and -33% from the state average for constituency size.
- Article 46 of the Federal Constitution should be amended so the number of seats allocated per state is reflective of the number of voters in those states, with changes made to representation in the Dewan Negara to protect the position of Sabah and Sarawak.
BERSIH 2.0 is currently working with state governments, Members of Parliament and voters to challenge the EC’s proposal in court for violating the Federal Constitution. While we are confident of the legal arguments submitted, there are concerns that a special panel has been convened at the Court of Appeal to hear two cases related to delineation. If this special panel puts forward a judgement that runs contrary to the interests of fair electoral boundaries and the rights of voters, the judges currently hearing delineation cases in the High Court will be bound by this.
In addition, BERSIH 2.0 will continue to encourage the public to take part in this process and use their voice in local enquiries to voice their objections.
The violations of voters’ rights in the current proposals and in the way the process was conducted is discouraging and only serves to further entrench distrust in the Election Commission.
Positively, the work of NGOs, Members of Parliament and individual voters has made this the most scrutinised delineation process in Malaysian history. In the past six years, civil society, politicians and voters have all worked to educate themselves on the conditions and effects of delineation and these efforts have forced the issue into the public spotlight.
Recommendations for SUHAKAM
- Hold a dialogue with the Election Commission to raise the negative human rights impacts of the current delineation proposal and explore avenues to reduce these impacts.
- Organise public engagement activities, such as forums and open consultations on delineation with the Election Commission, State and Federal Governments and voters in each state.
- Engage with the Federal Government and the Speaker of the Dewan Rakyat to establish a Parliamentary Select Committee on Electoral Reform to examine the EC’s proposals. This PSC should also be given the resources and time to examine the EC’s final proposals once they are presented to Parliament before it is submitted for a vote in the Dewan Rakyat.
 BERSIH 2.0, Malaysian Civil Society’s Memorandum on Electoral Reforms in Malaysia 2010, http://sayaanakbangsamalaysia.net/index.php?option=com_content&view=article&id=412:malaysian-civil-societys-memorandum-on-electoral-reforms-in-malaysia-2010&catid=1:letters&Itemid=88
“Najib: Parliamentary committee to oversee Election Commission”, Astro Awani, 1 June 2013, http://english.astroawani.com/malaysia-news/najib-parliamentary-committee-oversee-election-commission-15395
 “Report of Special Select Committee on Electoral Reforms”, Parliament of Malaysia DR. 1/2012, http://www.parlimen.gov.my/images/webuser/jkuasa/DR_%201%20YEAR%202012%20-%20PART%20VII.pdf
 Ong Kian Ming, “The Election Commission must disclose which groups are responsible for registering a record 500k voters in the 2016 Third Quarter electoral roll update”, 9 December 2016, http://ongkianming.com/2016/12/09/press-statement-the-election-commission-must-disclose-which-groups-are-responsible-for-registering-a-record-500k-voters-in-the-2016-third-quarter-electoral-roll-update/ (Accessed on 16 February 2017)
 Shahanaaz Habib, “Stand up and be counted”, 23 October 2016, http://www.thestar.com.my/news/nation/2016/10/23/stand-up-and-be-counted-there-are-42-million-malaysians-who-are-eligible-to-vote-but-they-have-not-r/ (Accessed on 16 February 2017).
 “Report of the Commission of Inquiry on Immigrants in Sabah”, p.307. http://www.sapp.org.my/rci/RCI-Eng.pdf
 For example, for Malaysians in Norway and Finland, the nearest Malaysian Embassy is at Stockholm, Sweden.
 The ACE Project, International Election Observation, http://aceproject.org/ace-en/topics/ei/eid/eid06/default (accessed on 15 February 2017).
 http://www.parlimen.gov.my/images/webuser/jkuasa/DR_%201%20YEAR%202012%20-%20PART%20VII.pdf and http://www.thestar.com.my/News/Nation/2012/04/03/Report-by-PSC-on-Electoral-Reform-passed-in-Parliament-Update/ There is indeed a vast range of electoral systems practiced worldwide such as the Alternative Vote (Australia), Two-Round System (France), Party-List Proportional Representation or List-PR (most European Countries, Brazil, South Africa, Hong Kong), Single Transferable Vote (Ireland, Malta), Mixed Member Proportional or MMP (Germany, New Zealand), Mixed-Member Majoritarian or MMM (Japan, Taiwan, Thailand).
 For example, for Malaysians in Norway and Finland, the nearest Malaysian Embassy is at Stockholm, Sweden.
 World Bank, “Bilateral Migration and Remittances”, http://go.worldbank.org/JITC7NYTT0, webpage accessed 13 April 2014, file T1.Estimates_of_Migrant_Stocks_2010.xls.
 Gomez, J., & Omar, R. (2013). Overseas Voter Mobilisation in Singapore: Implications from Malaysia’s 13th General Election. Journal of Current Southeast Asian Affairs, 32(2), 105-123. http://journals.sub.uni-hamburg.de/giga/jsaa/article/view/702/700
 Grace, Jeremy (2007). Challenging the Norms and Standards of Election Administration: Standards for External and Absentee Voting, IFES. http://www.ifes.org/Content/Publications/White- Papers/2007/Challenging-the-Norms-and-Standards-of-Election-Administration-full-text.aspx. Webpage accessed 24 May 2014.
 World Bank, “Migration & Remittances Data”, http://go.worldbank.org/092X1CHHD0. Webpage accessed 13 April 2014, files RemittanceData_Inflows_Apr2014.xls and Bilateral_Remittance_Matrix_2012.xlsx; XE.com exchange rate for 01 July 2012 used = 3.1762819478
 One-third of Seats Were Won by Bare 5% or Less in GE13, The Malaysian Insider, (17 Aug. 2013) Accessed on 30 Nov. 2015, http://www.themalaysianinsider.com/malaysia/article/barisan-needs-to-domore-to-keep-support-votes-for-ge14
 Merdeka Center, “GE-13: Election Watch Report”, p.18. http://www.merdeka.org/v2/download/Election%20Watch%20Report%20(GE13).pdf
 S9 of the Elections (Registration of Electors) Regulations, 2002 states that “For the purpose of a general election or a by-election, the Election Commission shall determine the last certified principal electoral roll and the supplementary electoral roll, prior to the dissolution of Parliament or a State Legislative Assembly or a vacancy occurring, to be used in the general election or the by-election.” Election Laws as a25th. February 2012. ILBS Petaling Jaya.
 Amendment to s5 of the Elections (Postal Voting) Regulations, 2003
 Form 13[Sub-regulation 24(1)] as specified under Elections (Conduct of Elections) Regulations, 1981.