Whither the electoral system?

A section of the Bersih rally in November 2007 reaches a Federal
Reserve Unit blockade  A YEAR ago on this date, roads in Kuala Lumpur were bathed in waves of yellow t-shirts as thousands rallied for free and fair elections. Estimates ranged from 4,000 by conservative media to 40,000 by other observers.

The massive street march began from various points in the heart of the city, and headed for Istana Negara with the intention of delivering a memorandum to the Yang di-Pertuan Agong to demand wide-ranging reforms to the electoral system.

Police roadblocks, rain, water cannons and the strong presence of the Federal Reserve Unit did little to prevent a spirited turnout.

The march was organised by the Coalition for Clean and Fair Elections (Bersih), a grouping of civil society groups and political parties who decry unfair practices in Malaysian elections.

Then came the 8 March 2008 general election, preceded just four days before by the Election Commission (EC)’s shock reversal on the use of indelible ink.

Still, the election was a watershed — the electorate voted across racial lines to give the ruling Barisan Nasional only a slim majority in Parliament.

The Nut Graph talks to EC deputy chairman Datuk Wan Ahmad Wan Omar to find out if the March 2008 general election has had any impact on the commission.

TNG: What has the EC done since the March 2008 general election?

Wan Ahmad: We spent two months meeting election officers in every state to get feedback on their experiences and shortcomings so that we can improve the way we conduct our elections. We have compiled a long post-mortem report and are in the midst of analysing every aspect.

Were there differences between this election and the 2004 general election?

There’s a lot to improve in terms of regulations and election procedures, but it’s too early for me to announce [them]. In the last election, we encountered problems that did not happen in 2004 because of the different environment then. Voters also had different perceptions then. This year was different in the sense that there were two big choices for the people in the form of two coalitions. The differences were evident in the campaigning and the issues raised, which made it complex for the management and enforcement of campaign rules.

What proposals have come out of the post-mortem report that you may implement in the next general election?

The area of campaign regulation, because of the use of the internet and Short Message System (SMS) in this election. Campaigning is governed by the Election Offences Act, and we have an election campaign enforcement team, but the team could not do the job thoroughly because there were no specific ways of handling internet campaigning. We have to discuss this with the police and the Malaysian Communications and Multimedia Commission because it also comes under their purview. It involves using technology to spread threats, accusations and to tarnish political personalities.

Another area is the needs of certain voters who cannot come out to vote, such as doctors, pilots, airline crew, oil rig workers, even those who are sick in hospital.

Will the EC consider major changes, like abolishing postal voting, which some parties have blamed for swinging votes at the last minute in favour of the ruling party?

We cannot do away with postal voting because the electoral system in this country needs it. Postal voting is universal, it is practised in most advanced democracies. We can increase the transparency in the postal-voting process, but we cannot abolish it.

An old ballot box at the EC office entrance. Transparent boxes were
used in the March 2008 general electionTo those who want it abolished, I must remind them that postal voters have the right to be given ballot papers under the law because they are registered voters, and unfortunately, they cannot vote on election day. That is why we arrange a special day in advance for them to vote. It is the responsibility of the commission to ensure their constitutional right to vote.

How do you ensure that the security forces are in no way forced to choose the ruling party candidate?

That’s a political assumption. That is not true. I say so because there is no way, based on our system and procedures, that that can happen. When security personnel get their ballot paper, just like any ordinary voter, they go to the polling booth and mark their vote in secret. The ballot paper is put in an envelope, which is then sealed, and then it is put in the postal voting sack, which is sealed. The sack containing the ballot papers must arrive at the returning officer’s office before 5pm on voting day. This is the law. And this entire process is witnessed and verified by the candidate’s agents.

Previously, only [EC] officers witness the process. Now, to improve transparency, we have allowed the candidates’ representatives to be present from the first minute to witness the security personnel cast their ballots.

What about allegations that postal votes are added at the last minute to a constituency where the ruling party candidate appears to be losing?

We count the postal votes first, and they are the first to arrive at the tallying centre where all votes for a constituency are added up. All postal votes must arrive at the returning officer’s office before 5pm. Any envelope received after that is rejected. At 5pm, the postal votes are counted by the returning officers.

Meanwhile, the presiding officers elsewhere at the polling stations close the voting streams and start counting the ballots. So the postal ballots are the first to be given to the returning officer, and the first to arrive at the tallying centre. So there’s no such thing as postal votes being added later.

A painting on the wall of the EC office

The EC has had problems with the electoral roll because it depends on data from the National Registration Department (NRD). Is this being sorted out?

It’s an ongoing process on the part of the NRD. We are talking about deaths throughout the country. Every day people die. The death is reported to the police, the police report to the NRD state or district office, who will then report to the NRD headquarters. Only then can the headquarters update their database. But it is not a simple [or] a fast matter.

If you can solve NRD data problems, will you be able to get rid of phantoms once and for all?

The commission defines phantom voters as those who have died and their particulars are still on the electoral roll. There will always be some names of the dead still on the roll. We can clean out some names today, but today itself, or tomorrow, other people will die.

But there is nothing to worry about, because a dead person, logically, will not come out to vote. It is not easy for imposters to use a fake identity card (IC) to vote. It is near impossible. You’ll have to get a fake IC. And the law is very strict. If you are an imposter using other people’s identity to vote, you are jailed two years, fined RM5,000, and lose your right to vote.

Has anyone ever been convicted of that?

We’ve not caught anyone. So far, in my experience, there hasn’t been such a case because there have been no election petitions filed on imposters. Why? Because there is no evidence. You cannot file an election petition without evidence.

What about cases of people using genuine ICs belonging to others?

No such petitions have been filed. But there is another type of phantom voter which our critics say are voters residing outside an area coming back to vote there. They regard these people as phantom voters, which is wrong. A voter has to come back to the place where he was registered to vote on polling day. But they live outside that area. Everybody does that. Our Members of Parliament (MPs), they live in Kuala Lumpur, but come election day, they go back to their kawasan to vote. Just like any other rakyat.

Can we not let people vote wherever they are on polling day to avoid allegations of phantom voters?

It is because our election system is the territorial representation system.

Can we not change that? Is it because we don’t have a two-party system?

Elections are always a boom time for poster
printersWe cannot. After observing election processes in many countries, to me, territorial representation is the most suitable for our country. Because we choose our representatives to represent our constituency. It is different from the proportional representation system, where we vote the party. The party puts up a list of candidates. If the Dewan Rakyat has 220 seats, then the party puts up 220 names. Then you vote based on the party, not based on the individual candidate. So if the party wins a certain number of popular votes, that will be translated into the percentage of seats in Parliament out of the 220.

Under proportional representation, the candidate is not obliged to serve that constituency. That is not good. But in the territorial representation system, the elected candidate has to deliver [on the] promises made or come the next election, he’ll be voted out. He has a direct responsibility to his voters. That is why our country can develop fast, because every constituency has someone responsible.

About the 2003 delimitation of electoral boundaries, can you explain why a state like Terengganu with a lower population than, say, Selangor had more seats?

We have to justify the physical features of constituencies. We use the weightage system. Let’s compare Hulu Terengganu with Selangor. Hulu Terengganu is big, remote and [does not have] many people. But it is time-consuming for one representative to serve the whole area. So you have to break it up. You need more elected representatives to take care of the area.

But in Selangor, the physical infrastructure is more efficient, communication and transportation are easier. Urban areas are also looked after by local authorities, which may not be so efficient in Hulu Terengganu. So you have 100,000 people in a big area; they need more elected representatives, compared with 50,000 people in a small place.

Hasn’t this over-weighting of seats in rural areas given an advantage to the ruling party?

Is there such an allegation? We use this system to fulfil the objective of our elections, which is to choose a representative who can give services to his constituents. The objective of our elections is to improve the electorate’s well-being. We use the territorial representation system, which achieves this.

I don’t quite agree with the proportional representation system for our country because it may be more suitable for very developed, advanced democracies. In that system, an MP or [assemblyperson]’s concern is the party’s ideology; the constituents’ needs are secondary.

Bread and butter… (© Haikik/Dreamstime) So the proportional representation system is not suitable for us because our politics is still largely based on bread-and-butter, development issues?

Yes. Proportional representation is used in countries where politics is very much based on ideology, and where they have two-party systems. The United Kingdom, however, is like us. We use their Westminster system of territorial representation, first-past-the post, but the UK is advanced. Voters have a different mentality. Although they elect according to constituency representation, they campaign on ideology and big issues, like social, healthcare or foreign policy.

Where is the indelible ink now? Will  the EC re-introduce it in future elections by amending the Constitution?

We’re not thinking about it because of the constraints posed by Article 119 of the constitution. Every registered voter has the right to vote, and we cannot refuse to give him a ballot paper if he refuses to have his finger marked with the ink. So it’s just not possible. We’ve destroyed the ink according to government procedures.

Didn’t the EC know the law prior to announcing that the ink would be used?

(© b79/sxc.hu) We thought we could implement it administratively, since some parties wanted the ink used. Later, we were informed by the attorney-general about this provision in the constitution. So we explained why we have to cancel it. If not, we can be sued if we don’t issue ballot papers to people who don’t want to be marked with the ink.

On the filing of election expenses by candidates, shouldn’t the EC audit the statements to verify that they are truthful?

That is the responsibility of the contesting candidates. The EC acts according to the law, which is to receive the candidate’s statement of expenses. So long as he submits and declares he has spent on this and that within the limits (RM200,000 for parliamentary candidates and RM100,000 for state seat candidates), he has fulfilled the law. But if there are doubts about the authenticity of the details, it is the responsibility of the other candidates to contest it through an election petition.

Is there any intention to give the EC this audit role, because candidates could easily under-declare?

It is better that this is monitored by the rival candidates. It is in their interest to find out if their rival is involved in wrongdoing. The EC just manages the conduct of the election. Auditing their expenses will require checking and investigation. We can’t do that for 220 parliamentary constituencies and 576 state seats. Can you imagine the enormous amount of work, which is not really the EC’s concern, but is a matter for the candidates who have doubts? So let it be their responsibility. If they have evidence, they can file an election petition.

Posters are not put up for free, adding to the
candidate’s or party’s election expenses. But only
the candidate is answerable to the lawShouldn’t the EC regulate campaign expenses by parties and not just candidates? It’s obvious that a lot of money is spent on posters, holding ceramah, transport, and provisions for party workers.

Our electoral system is such, as I said earlier, that the people elect their candidate and not the party. So whatever involves the candidate’s activities, that is the concern of the EC. What about candidates who have no party, who stand as independents? Yes, the party works to help [its] candidate win. But when it comes to accountability in the context of election law, the candidate is responsible.

How can the EC ensure that political parties use their own money, and not use taxpayers’ funds or public facilities?

If there are doubts, get evidence and report to the police and Anti-Corruption Agency (ACA). With the evidence, file an election petition. This is under the scope of the police and the ACA, because the EC is not an enforcement agency. Things like this should be debated in Parliament, because they make the laws. We just conduct elections based on the given laws.