IN the lead-up to the Kuala Terengganu by-election, Parti Keadilan Rakyat (PKR)’s fortnightly newspaper Suara Keadilan began taking Datuk Seri Najib Razak to task for not keeping an August 2008 promise.
The party mouthpiece reported that a RM4.18 million allocation for mosques and suraus, which the deputy prime minister pledged during the Permatang Pauh by-election, had failed to materialise. The article was simply headlined “Najib bohong”. Berita Harian later reported the funds were already on their way.
Development promises during an election can, indeed, bear special weight. The question is, are such development promises permissible, or even legal?
Not necessarily evil
For Ong Boon Keong, northern regional co-ordinator for Malaysians for Free and Fair Elections (Mafrel), development promises in general are not necessarily evil. In fact, he says, they may actually help voters cast their ballots wisely.
“Positive promises show the party’s priorities, as well as its fiscal responsibility,” Ong says in an e-mail interview. Outlandish promises will show up a party as wasteful. Those which are unlikely to be implemented will demonstrate a lack of credibility, he explains. Voters, he believes, can judge if pledges are realistic.
“Election promises are by themselves no infringement of any law,” Ong adds.
Indeed, democracies the world over see political candidates vowing to undertake one action or the other to demonstrate the tenor of his or her administration. The phrase “campaign promise” is proverbial: when someone is said to make one, you would be surprised if he or she actually delivers.
However, it is when development promises are made to overtly influence how voters will vote that the boundaries begin to blur.
In Kuala Terengganu
Perhaps the most emblematic promise of development during the Kuala Terengganu by-election was made by Terengganu Menteri Besar Datuk Ahmad Said, who said that a RM5.8 million development project for the constituency was in the works, and would be carried out after the by-election. The size of this figure was, Ahmad revealed, dependent on the ballot box.
And on 16 Jan, the eve of polling day, he asked the Chinese Malaysian electorate in Bandar to be “understanding” if state development funds were diverted, should the Barisan Nasional (BN) candidate not win.
National Institute for Electoral Integrity (NIEI) chairperson Yunus Ali reveals that the sum total of funds promised during the election campaign in Kuala Terengganu was much higher than just RM5.8million.
“The ruling party promised more than RM1 billion worth of funds to Terengganu,” Yunus says in a phone interview, referring to his organisation’s tally.
NIEI issued a press statement shortly after the conclusion of the by-elections, which observed that “indirect bribing, designed to fish for votes, was rampant”. The statement supplied an incomplete list. This included the RM100 million allocation for low-cost housing, the Emergency Fund for Fishermen with a launching capital of RM1 million, and the RM6.1 million gift to SJKC Chung Hwa Wei Sin.
Bribery under the law
Such obvious voter-inducement, and the appended veiled threat, in the case of the Terengganu MB, is highly questionable. But is it illegal?
Inducing voters to cast their ballot a certain way is “bribery” under Section 10 of the Election Offences Act (EOA) 1954. Similarly, a party that “threatens to inflict damage, harm, or loss” is exerting “undue influence”, as defined by Section 9.
(© Hjalmedia / Dreamstime)
More material bribes such as payments in cash and kind to voters are clearly illegal under the EOA.
“Such bribes are done to different degrees by all candidates,” Ong says, “though the BN candidate tends to be the bigger offender in most elections.”
The NIEI’s report correlates this, saying: “… the distribution of goodwill cash for Terengganu citizens, amounting to RM300 for adults and RM250 for youths, was announced. Chinese voters would receive RM300 ang pows for Chinese New Year. Kuala Terengganu’s trishaw pullers were promised RM10,000 each.”
However, it is difficult to declare the BN’s development promises an offence as the law does not cite such circumstances directly.
Still, such development promises, which may strongly and unfairly influence election results, are problematic. This is especially since it is the incumbent who has access to public funds who can make development promises, hence making it an uneven playing field for opposition candidates.
Why no action?
If there is evidence of wrongdoing, however, why hasn’t legal action been taken?
One reason is that the EOA itself is weak. “The EOA should be amended, to focus on giving teeth to the various offences enumerated,” Ong says.
“We need tougher election corruption laws,” Yunus adds. He cites neighbouring democracies that have firmer punitive and preventive measures.
In Taiwan, for example, corrupt practices or misuse of government bodies during an election are not only grounds for disqualification, but criminal prosecution and imprisonment of up to two years. Thailand has stringent laws which bar candidates from donating to charities.
Yunus points out that Taiwan has been increasing the health of its democratic politics through effective legislature. “We need these laws. [They] work!”
Partisan EC
Another obstacle to action being taken, Yunus argues, is the Election Commission (EC)’s partisan nature.
The EC chairperson is recommended by the
prime minister
(© Wan Leonard / wikipedia)
He notes that it is the prime minister who recommends to the Agong who the EC chairperson and deputy chairperson should be.
Yunus thinks that the EC needs to be structurally reformed. “The EC should not be responsible to the prime minister, but to Parliament.” It should also be inclusive of all players with a stake in an election, including all political parties, so that it is impartial and seen to be so.
Ong agrees. “This is an international norm. Malaysia should not veer away from this norm, while trying to claim its election system as being on par with international standards.”
Ong emphasises, however, all other agencies which are involved in the elections should also be reformed. These include the police, the public prosecutor’s office, and local governments. He notes that a good EC which functions in isolation from the other agencies may make little difference.
Ong also observes that election petitions to the EC are aimed at challenging election results, not to deal with violations of the EOA. “The EC cannot act on vote-buying. It is the Malaysian Anti-Corruption Commission (MACC)’s jurisdiction. The EC cannot act on election violence. It is the police’s jurisdiction.”
A better arrangement, Ong says, would be to empower the EC to become an “apex authority” for the duration of elections, with all other agencies giving their full cooperation.
The NIEI, in the meantime, is taking measures to ensure that, when calls for reform are heard, there will be sufficient proof for the need for changes. Their report on corruption in the Kuala Terengganu by-election will be finished in two weeks, and will go to the MACC.
“We didn’t really collect the data before,” Yunus says. “This is the first time we are going into detail.”
But while civil society leads the way, government action will depend on a measure of political will Malaysian politics may not yet possess. 
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