GE (General Election) 13

Recording of the Delivery of the Report that took place on 25 March 2014 at Empire Hotel in Subang Jaya, Selangor:

Introductory video by Pusat KOMAS on the PEople’s Tribunal which commenced from 18 to 21 September 2013 and ended with the submission on 27 September 2013:

 

SUMMARY OF THE REPORT

Part I Introduction

Why the Tribunal?

The People’s Tribunal was set up by BERSIH 2.0 (Coalition for Clean and Fair Elections) to investigate the conduct of the General Elections of 2013 (generally known as the GE 13). BERSIH 2.0 had deployed observers throughout the country and received many allegations and complaints about electoral misconduct. What was different about the GE13 was that it was not just the losers that expressed this view. Several independent observer groups, including those specially appointed by the EC, were of the view that these elections were not only conducted in a manner that violated basic principles of free and fair elections (generally true of previous elections also) but that had these elections been conducted properly the outcome would have been very different. It was this that was the impetus for the tribunal to be set up.

The Task of the Tribunal

Our mandate is defined in the Terms of Reference established by BERSIH 2.0:

(i)        Investigation of any violation of laws, rule of law, and international norms/standards of free and fair elections;

(ii)       Whether these acts had an impact on the legitimacy of the outcome of GE13;

And to:

(i)        Review the electoral process which took place during GE13 and in particular

(ii)       Identify any shortcomings in the formation, powers, functions and operating procedures of the Electoral Commission (EC) that (a) do not adhere to international standards and (b) prevent or impede a free and fair electoral process;

And

(i)        To consider and make recommendations as the Tribunal deems appropriate with regard to any findings or conclusions made by the Tribunal.

In brief, the mandate was to examine, in the light of international law and standards, and the law of Malaysia, allegations about the conduct of GE13, receiving evidence of what occurred, and to determine whether, to use a popular expression, those elections were “free and fair”. And we were to go on to find what was the impact of any shortcomings that we found on the outcome of the elections, and the legitimacy of the elections (by which we mean their acceptability in the eyes of the people of Malaysia). Finally we were to make recommendations intended to ensure that in the future elections can meet standards of what is free and fair, which would involve understanding why there were shortcomings and who was responsible for them.

Our procedure

At the outset we want to make clear that though we were appointed by the Bersih, the Tribunal is independent and at no time did Bersih try to influence us in any way. We on our part cross examined witnesses (particularly in the absence of the Election Commission) and carefully reviewed the evidence submitted to us. Our primary objective throughout has been to find out if the GE13 were conducted fairly and in conformity with the law and international standards, and recommend reforms that would enhance democracy and promote national unity.

The Tribunal held several public sessions from 18th to 21st September 2013. The proceedings were opened by Lead Counsel Professor Gurdial Singh Nijar, who also rounded up the proceedings by a marathon speech on the last day, and led most of the evidence. In all, 75 witnesses attested to different aspects of the electoral process, 49 of them in person, and there were 66 statutory declarations, made under the Statutory Declarations Act, 1960.

The witnesses included politicians, party officials, parliamentary candidates, election observers, academics and scholars, specialist NGOs, electoral experts and ordinary citizens. There were multiple witnesses to most of the matters attested to. Some of the witnesses came forward once the hearings had started, wishing to make their own contributions.

The Tribunal wishes to thank the witnesses who gave up their time, with often no apparent benefit to themselves and tolerated our questioning with good humour. This demonstrated altogether a true commitment to the national interest. It also wishes to thank Professor Nijar, and the team of volunteers, including many lawyers, who carried out investigations, to identify witnesses and assisted in other ways.

What was missing from our proceedings was any evidence or submission from Government or the Election Commission. This, we understand, was not for want of trying on the part of BERSIH 2.0, who did invite them to participate.  The Tribunal has been scrupulously careful in analysing the evidence to bear in mind the impossibility of “hearing the other party” – but the “other party” could not be not be compelled, unlike a court of law.

International Standards for Free and Fair Elections

The standards that should be applied are found in Malaysia’s national law and its Constitution, and in international law and standards.  We should explain the latter: the Universal Declaration of Human Rights (Article 21), which although not a formally binding document, should be taken as a commitment to its implementation by any member of the UN. It says:

1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
2. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Though Malaysia is not a party to the International Covenant on Civil and Political Rights, its language (in Article 25) is almost identical to the UDHR; so some guidance as to what meant by “periodic and genuine elections”, “equal suffrage” and “free voting procedures” is to be found in the General Comment of the UN Committee on Human Rights on Article 25.

Many of the most basic and familiar rights in human rights instruments are relevant to elections, especially:

• equality
• human dignity (not mentioned specifically in all, but often viewed as the underlying basis of human rights generally)
• freedom of expression
• freedoms of association and assembly
• right to a remedy and fair proceedings in case of a dispute.

More specific guidance is to be gained from the various documents that do not have the status of law. The Inter-Parliamentary Union, for example, put forward a valuable set of guidelines in 1994, and in 2011 there was published The Electoral Integrity Group’s Report,  Towards An International Statement of the Principles of Electoral Justice and in 2012The Report of The Global Commission on Elections, Democracy and Security.

From the various sources it is possible to identify seven broad parameters of elections that are just or have integrity:

• First, equal representation guaranteed in apportionment and constituency boundaries, voter registration, and converting votes into seats.
• Second, electoral laws and regulations based on the democratic principles of election (universal suffrages, direct, secrecy, free, just and fair, transparent and accountable) as well as lawfulness or legal certainty.
• Third, free and fair contestation – providing a level of playing field for all electoral contestants.
• Fourth, participation of all stakeholders in the electoral process (parties, civil society etc.).
• Fifth, an independent and professional electoral management body for electoral governance.
• Sixth, electoral integrity in voting, counting, aggregating, and reporting results of election.
• And seventh, electoral dispute resolution conducted in just and timely manner.

Of course the circumstances of the particular country must be taken into account in creating and evaluating a system of elections and their management.

The legal framework for Malaysian House of Representatives elections is found in

1. The Federal Constitution – Articles 46 and 113 to 119; and Thirteenth Schedule
2. Elections Act 1958;
3. Election Offences Act 1954;
4. Election Commission Act 1957;
5. Elections (Conduct of Elections) Regulations 1981;
6. Election (Registration of Electors) Regulations 2002; and
7. Elections (Postal Voting) Regulations 2003.

The Tribunal had these before it, and refers to them in its Report, but it also had to decide, in certain respects, whether the laws are in fact adequate.  Although it found certain shortcomings in the law, many of them introduced deliberately, it is not on the whole the law that is the issue, more the way that the law is – or is not – applied.

Conduct of GE 13

The rest of this document summarises the issues and allegations raised before the Tribunal, indicates Tribunal’s findings and the recommendations made to address the findings where they are of failings that can and should be remedied. The recommendations relate to changes in the Constitution, and in the law, and in the structure, appointment, procedure and culture of the Electoral Commission, as well as to government practice, and enforcement of the law. Some recommendations are of things that are essential, while others are for the consideration of possible measures.

We end with a final, overall verdict. But to anticipate: in a word, that final verdict has to be that the Tribunal, having approached its task with an open mind, has found itself compelled to reach a conclusion that there were multiple failings in the way GE13 was conducted, and that virtually every tenet of a fair election was violated at some place and at some time. Though the elections may  have been “free” that was so in a rather narrow sense: that on polling day those who were registered and wished to vote were not hindered in doing so – and even that minimal concept of a “free election” must be qualified.

Part II: Findings and Recommendations

The order used in this Part is based upon the rough chronological sequence of events that relate to elections. The issues identified are based upon the evidence given to the Tribunal. The evidence is not specified in any detail: the full Report of the Tribunal summarises and examines evidence, and more information still is to be found in the CD prepared by BERSIH 2.0.  Each set of issues is followed by specific recommendations (departing from the order in the full Report, where recommendations follow the findings as a whole).

The Tribunal did weigh the evidence it received, and – although it was not bound to follow the strict rules of evidence that courts have to apply – paid particular respect and attention to the evidence of people who actually witnessed abuses which they related.  We questioned witnesses to probe them a bit, and to try to test the truth and credibility of what they were telling us.

But before embarking on our voyage through the election process we have something to say about the Chart:  the Constitution, the founding document of the Malaysian state, which provides a framework for everything that public bodies do, shapes people’s expectations and recognises their rights.

The tribunal recommends that consideration be given to amending the Constitution to:

• include a right to vote, in free and fair elections
• set out the principles of a free and fair electoral system,  especially secret ballot and that as far as possible the votes should be of equal value
• provide for the principle of equal access to the media, particularly at election time
• include clear and effective provisions to ensure the independence of the Election Commission, including through the process of appointment
• provide some framework principles for political parties and their regulation.
• provide that caretaker governments (in the run-up to elections) must not take initiatives or make promises designed to influence the outcome of the elections.

Any systematic violation of any principle would be sufficient ground for declaring the elections void.

Citizens age 21 and above are supposed to be able to vote, and for GE13 this was extended to those who were overseas. Though the Tribunal is not convinced that it is wrong to have some requirement of continued connection with the country for those overseas to be able to vote, there was evidence that voters in some countries did not have the same chance as those in others to participate. This discrimination is wrong and a violation of the rights to equality in the Constitution. The Tribunal also notes that even prisoners on parole are not able to vote, and is glad to know that the government is considering the position of prisoners as voters. Finally, it is perhaps surprising that Malaysia retains a voting age of 21.

The Tribunal recommends that care be taken to ensure that all residents overseas are treated equally, regardless of where they live, and that consideration be given to lowering the voting age to 18, following the great majority of countries in the world.

One person, one vote, one value

The principle of one person, one vote, one value is a key part of fair elections. The “first past the post” electoral system used in Malaysia depends heavily for its integrity on the constituency boundaries. Firstly the individual voters will not be equally represented if they are in constituencies with significantly different numbers of voters, and secondly the actual outcome of overall results can be severely affected by moving boundaries: the process known as “gerrymandering”.

The law – in fact the Constitution – of Malaysia is rather weak in the ways it deals with both these issues, but the way in which it has been applied is the greater problem.  There is some rationality to allowing rural constituencies that are sparsely populated to have fewer voters, in order to ensure that the MP does not have an impossibly large area to cover (and the Constitution allows this). But it does subordinate the equality of the vote to administrative convenience and quality of representation. There is no justification for giving more urban areas greater representation – by means of making voter numbers smaller. It is against the law, but seems to have happened in a number of areas. It is hard to see how having one constituency 9 times the size of another in terms of electorate can be described as “approximately equal”, which is what the Constitution requires.  A witness gave evidence that, on average, a vote for BN was worth 1.6 times a vote for PR, because PR leaning constituencies are on average larger.

Gerrymandering is the deliberate manipulation of boundaries to achieve certain results, not just by size but by make-up of electorate. There is evidence that this has also happened.

And some things that happened could not be justified even on the basis of ensuring that there is coherence in the constituency to be represented by one member: separating neighbours or even members of a single household into separate constituencies cannot be justified on this, or any other basis.

The Tribunal recommends that the law be changed to clarify the criteria and the extent to which they may be diverged from to accommodate sparsely populated areas.

It endorses the recommendation that the task of boundary delimitation be conducted by a body other than the EC, (such as a “Boundaries Commission”) to strengthen the integrity of the process and avoid over-burdening the EC. That body should also be independent, and expert, conducting its work with public consultation and its reports submitted direct to the House of Representatives.

Consideration should be given to providing that any changes in the recommendations should be made only by an enhanced (more than the existing majority of all the members) majority in the House of Representatives. Or to leaving the final decision with the expert body.

Suspicions are also raised by the flexibility of the requirements about when boundary reviews should take place. These would be less if the body was independent. But if it was separate it would be necessary to fix the cycle anyway. The norm is to require it after every census. The Tribunal recommends that this approach be adopted and the Constitution amended accordingly.

Registration of Voters

Overall there is strong evidence of various inaccuracies on a scale so great in GE13 that there is reason to suppose that this is designed to set the scene for fraud. Some errors are to be expected, but it is hard to see how someone who did not apply could be registered by accident, or how someone who resides in one constituency could find him/herself registered in another constituency and the Tribunal must conclude that this was the result of some deliberate act of fraud, though on whose part precisely is not clear.

However, since no one is supposed to register without showing identification, it is hard to believe that there was no collusion on the part of EC staff. Again, registering one or two people in the wrong constituency might be carelessness; registering those who have not sought registration is suspicious. And there was a good deal of evidence presented to the Tribunal that considerable numbers of people have been registered somewhere other than where they live. Names of those who had died were sometimes still on the registers.

There was a good deal of evidence about suspicions of “foreigners” registering to vote. This was somewhat speculative (people who “appeared” to be foreign), and it is hard to draw any firm conclusion about this. But the recently concluded Royal Commission of Inquiry into Illegal immigrants in Sabah was told by the Director General of the Sabah  NRD that there were 113,000 problematic ICs in Sabah, and the Tribunal was told that the EC has claimed that it cannot verify the authenticity of these identity cards. This situation offers great scope for “phantom” (unentitled) voters.

The Tribunal recommends that the register is regularly and scrupulously checked to make sure that dead and other “phantom” voters are not included.

For East Malaysia at least – but preferably for the whole country – the register should be compiled afresh from scratch since such serious shortcomings have been revealed.

Care must be taken to ensure that it is clear what is the final register.

The law and regulations should be overhauled to ensure that there is adequate opportunity for the roll to be inspected and corrections made.

Law and practice must ensure that no-one’s name is removed without their being given the chance to object.

Postal and advance voting

A major issue in the election was what seem to have been excessive use of postal and “advance” voting for certain voters, based on occupation and profession. Though this may be useful to make it possible for those genuinely unable to vote on polling day (making the right to vote more widely available), it raises problems at various stages. Interestingly, an election judge in the UK recently warned that postal voting (freely possible in that country) is in danger of making fraud on “an industrial scale” possible.

There is some risk that postal voters will be attributed to the wrong constituency. This should not happen but there is some evidence that it did in GE13. It may be harder to check that only those who are really entitled vote.

Custody of ballot papers is a major issue. Concern was expressed about ballot boxes being stored in police stations, under the custody of state officers not party to what should be the EC principle of impartiality. There was indeed evidence of inadequately safe-keeping, and also of party agents being unable to verify the quality of custody.

Risks include ballot papers being “lost” especially if they are for the “wrong” party or person, or of genuine advance/postal ballots being substituted by others (completed by officials or others) and that there is double voting by those entitled to postal or advance voting.

Strong evidence was given to the Tribunal that that the procedures for postal and advance voting were not properly applied. The Tribunal takes the view that advance voting was indeed used excessively in this election (though some countries permit it to anyone who chooses to do so). Anyone who would be away on the polling date should have the right to advance voting. But this right should not be extended on the grounds of profession (such as police, army, voting officials, postal officials).

The Tribunal recommends that the whole use of postal and advance voting be reviewed, and that the devices be used only when strictly necessary.

Organising and Campaigning

Political parties have to be registered. But there is reason to believe, from evidence given to the Tribunal, that the Registrar of Societies is not even-handed in treatment of government and opposition parties. The particular issue raised in evidence was that the parties of the opposition grouping were refused permission to campaign as a coalition under a single logo, with the Barisan Nasional had such permission. This is a violation of principles of equality (including in the Constitution) and of standards of fair election (including of the level playing field).

Genuine elections require that everyone contesting is free to campaign, and voters can thus make their choice informed by that campaigning. Unfortunately there was significant evidence that parties and candidates were not always free to campaign, that intimidation was found in some places, and that this was sometimes supported by official sources. The victims were mostly opposition candidates.  This evidence indicates not so much that the law restricts freedom to campaign, but parties, supporters and even officialdom obstruct the exercise of the freedom. The worst example was the tragic murder of a party supporter (after threats from a rival supporter), whose mother bravely and movingly testified to the Tribunal about her son and his murder. Freedom of speech is good, but there are good reasons for some degrees of restraint and even control during elections periods.  There is strong evidence that some parties seriously overstepped the mark in terms of their “campaign strategies”, behaviour that can be not just unfair but dangerous in a potentially volatile situation. Campaigning is often on ethnic lines, to foster dislike and fear of other ethnic groups. The law relating to stirring up hatred seems to be largely unenforced at this time.

The same can be said of restrictions on campaigning in terms of time and place, intended to ensure that voters can make their individual choices without being subject to the immediate influences of posters and campaigners.  These restrictions, contained in the law were flouted in some places.

The Tribunal recommends that registration under the Societies Act should be replaced by a system tailored to the situation, with specific legislation for parties, administered by the revamped EC. This would take this task away from a civil servant and give it to the independent EC.

Legislation should require parties to have constitutions providing for internal democracy. This is important for ensuring that the chance of standing for election is broadened, thus expanding the choices open to voters. And the development of policy platform by parties ought to be conducted in a way that involves party members.

The specific issue of campaign funding

Elections should be decided on the basis of policies and competence of parties and candidates. If lavish spending becomes the determining factor, there are various risks: not just of bribery, but of fundraising from sources that will expect “payback” after the elections, and of voters being swayed more by appearances than by substance.

There is law in Malaysia that is supposed to limit expenditure by candidates, but it does not really require party expenditure to be declared. Nor does it prevent supporters from spending money lavishly. Evidence was given to the Tribunal that the limits are often exceeded by relying on these loopholes in the law.

The Tribunal recommends that parties should be required to be open about their finances including major sources of funds.

Consideration should be given to whether some sources of funding of parties should be forbidden.

There should be restriction of the possible expenditure by parties, as well as by candidates, on elections, and requirements of disclosure. Expenditure incurred by a party tailored to the campaign of a particular candidate should be attributed to the candidate.

Role of Media

In modern society, the media are a crucial part of democracy. The people depend heavily for their information about parties, candidates and their policies on the media. And normally the mainstream media, state owned or private, are thought to be the most reliable sources. It is a grave dereliction of professional obligations not to provide that information in a reasonably balanced and honest way.

The Tribunal concludes from the evidence before it that Malaysian mainstream print and electronic media are clearly biased against opposition parties, with BN portrayed in positive terms and opposition parties negatively. The Tribunal cannot resist observing that the absence of mainstream media from its proceedings, and of its proceedings from those media, while alternative, especially on-line, media showed considerable interest, must be symptomatic of the orientation of those mainstream sources of information.

The Tribunal recommends that the principle of equal access to media and media’s obligation to provide a fair presentation of the policies of all parties and candidates should be enshrined in the law, and even, in relation to elections, in the Constitution.

Consideration should be given to restricting the ability of political parties to own methods of public communication such as newspapers.

Codes of practice should be developed to ensure that equal access during election periods is established as an important principle.

Bribery, treating and undue influence

The most obvious of electoral malpractices is bribery: no voter should be paid money to vote, not to vote or vote in a particular way.  “Treating” involves giving food, drink or refreshment to influence a person to vote or not to vote. By undue influence the law means other forms of influence, such as physical violence or threat of violence, abducting a voter or preventing them from voting in some other ways, or even threatening divine benefits or retribution. All are criminal offences (up to two years imprisonment, and RM1000-5000 fine), and anyone convicted is barred from voting or standing for 5 years.

It is always hard to prove corruption of this sort; nonetheless there was very considerable, and convincing, evidence presented to the Tribunal that bribery is a common practice in at least parts of the country. Some of that evidence was even in the form of video recordings. Notably many of the witnesses were either Orang Asli themselves or had seen others offering bribes of various types in Orang Asli communities.

It is also notable that most of the evidence was of measures intended to benefit BN candidates. And the evidence points in the direction of not only candidates but government officers, such as chiefs in Orang Asli communities, playing a part in this debasement of the electoral process.

The Tribunal recommends that this should be taken very seriously through public education and vigorous enforcement of the law.

Skewed Playing Field

The concept of the “level playing field” is crucial to fair elections. Everyone contesting, or wishing to contest, should be treated equally, not subject to unfair handicaps or deriving unfair benefits. It is perhaps unfortunate that the metaphor is derived from sports: elections are not a game!

Governments want to win elections by showing the electorate that they have and will benefit from re-electing them. But the inducement should be the adoption of policies that benefit the people, not the use of government resources in ways that discriminate unfairly, and are little different from bribes. Unfortunately there was convincing evidence that the latter was happening. Communities were promised benefits from government if they voted in a certain way, and – particularly outrageously – threatened that programmes and services would be taken away if they did not. The Tribunal heard from eye-witnesses to such behaviour. This was often in the same areas where outright bribes were being given. This is not only unfair but is taking advantage of the more vulnerable sections of society.

The brazen use of government resources such as buses, of which there was also clear evidence, demonstrates an inability to distinguish between what belongs to the nation and what belongs to the party.

The Constitution does not refer specifically to the concept of a “caretaker government” – the government in the period running up to elections having to be restrained in the way it carries out polices so that they are not used or seen as bribers. Yet it is a widely accepted principle, and in some countries codes of practice guide government in this period precisely to avoid abuses.

The Tribunal recommends that such behaviour be treated seriously by the EC, and other authorities. Some of it may be a criminal offence, and should be treated as such.

The EC should take seriously this issue and issue guidance for government. There was a suggestion that the EC felt it was unable to do so, but this seems to be a quite unjustified example of self restraint, indeed self-crippling.

The ability actually to vote: and the exclusion of those not entitled

It is crucial that those entitled to vote and registered are able to vote, and that those who are not entitled to vote are not able to do so. There was considerable evidence of at least sloppiness in ensuring that those who voted were entitled to do so in some polling stations or streams: voters asked to read out their IC numbers, for example. Some voters found others had already voted in their name. There was some evidence of person with disability being unable to vote as the law allows – with the assistance of a trusted relative or friend.

GE13 saw the introduction of a new mechanism to prevent double voting: the use of indelible ink, painted on the finger of each voter. This is used in many countries – it is quite mature technology.  Yet it seems in Malaysia to have been a dismal failure: the ink was not of the proper composition, so it could be washed off easily. In some places it was not used at all –- but ordinary pen that can be easily removed. It was sometimes applied so thickly that it did not dry quickly and smudged the ballot papers. Some voters even used it – were perhaps even told to use it – to mark the ballot paper. And there was no explanation why different kinds of ink seem to have been used in different constituencies.

The Tribunal recommends that procedures be put in place to ensure that the correct sort of ink is acquired, in good time.

Staff at polling stations must be properly trained, and properly supervised. Indelible ink is supposed to dry in a very short time; there is no reason why it should smudge the paper.  And staff must realise why procedures are instituted, so they do not fail to follow because they cannot see the point.

After the voting: Counting etc.

The Tribunal heard sufficient evidence to indicate that after being cast, votes were not necessarily either stored or counted with adequate care. This was particularly true of the advance and postal votes, but sometimes of votes cast on the day as well. There was also evidence of errors in adding votes, or deliberate falsification of the forms on which records are kept of ballot papers issued, spoiled and used, and on which records of totals from counting stations are kept and added.

The tribunal recommends that satisfactory arrangements should be devised for the custody of ballot boxes especially for advance and postal voting. It seems that custody in police lock-ups has not met reasonable standards.

Procedures for the scrutiny of the forms for recording must be strictly enforced, so that they are not signed off until party agents have seen that they tally.

Transparency and openness

There were a number of witnesses who stated that they or their agents were unable reasonably to observe stages of the process after the actual vote.

Election observers, national and international, have become established as a means of monitoring election practices, strengthening public faith in the system. A country that tries to shackle them does itself no service.  There is no basis for viewing foreign observer teams as some sort of colonial conspiracy. While foreign observers contribute to an international focus on the elections, it is often the case that the local groups understand the issues better, and they will almost certainly be able to cover more ground, and do so over a longer period.

The evidence suggests that the government could have strengthened the local observations by choosing some other groups, though groups that were involved in GE13 seem to have done admirable work. The evidence suggests that EC invited certain election observers but did not invite others.

The Tribunal recommends that arrangements for observation of elections should be decided well in advance and on the basis of clear criteria. Election Monitors should be free to apply to get accreditation from EC based on the requirements stipulated in the law.

The Electoral Commission

The EC is at the heart of an election system. Courts can handle only a small number of cases. The real first line of defence against malpractice is the Commission. Like the judiciary, the Commission must be independent and be seen to be independent.

The Constitution and the law do not adequately guarantee that independence. The method of appointment does not guarantee independence, even if after appointment members cannot be readily dismissed. The independence of the body is further undermined by the practice of filling it with current and retired public servants, all, necessarily, having served the particular party that forms government. This makes it hard to escape a conclusion that Suruhanjaya Pilihan Raya (SPR) or EC Malaysia was designed as the instrument of the ruling party to help keep it in power.

In its operation the EC is too closely linked to government. Under the Constitution, the Yang di-Pertuan Agong or King must follow what is (traditionally but misleadingly) termed the “advice” of the Cabinet, unless the Constitution or a law specifies otherwise. There is no such other clear specification in relation to the King’s approval of regulations made by the EC on the conduct of elections (s. 15 of the Elections Act), his consent to the release of certain information under the Election Commission Act, or his making of regulations changing the salaries, benefits etc. of the Commission (though the Constitution prevents this power being used to reduce the salaries and benefits). The King (for which read Cabinet) gives approval for leave of absence of the Chair and appoints an acting chair (Constitution s. 114). The King also approves the terms of employment of staff (s. 115). When it delimits constituencies, the King decides which two public officers are to assist it (s. 115(2)).

When the EC revises constituency boundaries it reports to the Prime Minister who sends it to the House of Representatives for approval, with his proposals, if any. It seems that the House of Representatives must vote Yes or No on that Order, but may not itself make any changes.

Independence would require that the EC organize elections based not on direction and intervention from the ruling party but on the Constitution and the law. Evidence suggests that  returning officers and polling officials were able to exercise too much discretion at the operational level (voting and counting). Operational procedures for all aspects of election are not yet regulated comprehensively.

The conclusion seems inescapable that radical change in the EC is essential if faith in Malaysian elections is to be restored.

The Tribunal recommends that the EC must be independent: in its method of appointment, its operation and in its mindset. To achieve this some changes in law are required, and the Constitution, and some changes in appointment practices and some changes in behaviour are required.  It would be necessary to develop a method for appointment of a truly independent commission. The current method is essentially the same as for the senior judiciary. That method would not be considered sufficiently independent in many countries, judicial service commissions having been widely adopted for appointing judges.

The law must be changed to make the EC genuinely independent in its operations from government.

Equally important as changes in the law is a change in the “culture” of the EC from one that pre-supposes the outcome of the elections, to one that allows the people to determine that outcome.

The reborn EC must be pro-active, and it must have the legal backing for that action.  Consideration should be given – in revising the legislation – to enforcement powers; should it have the power to prosecute, rather than referring the matter to the Public Prosecutor (the Attorney-General) , a government agent?

The reformed EC will need capacity building so its staff can cope effectively with new responsibilities and challenges.

Police and administrators

These important elements of the governmental system do not appear always to have fully internalised the nature of the roles they are to play in connection with elections. The evidence suggests a culture of party subservience that is at odds with the ideals of a democratic system.

There are problems with the law, but most of the issues are with the vigilance of the authorities and their responsiveness. There were many reports that complaints have been made but not taken seriously by the EC or the police.

Prosecutions under election laws have to be approved by the Public Prosecutor, in other words the Attorney-General, an officer who owes the appointment to the government, and can be dismissed at will.

The Tribunal recommends that prosecution of election offences should not require the approval of an essentially political appointee.

A policy of vigorous enforcement of these laws needs to be introduced. The police should be trained in what is involved. There is much experience of developing mechanisms to deal with corruption; corruption in the area of elections is very important and should be treated like other forms of corruption. 

Disputes

Over the years the law has been changed to limit the scope of dispute resolution in elections cases through the courts. It is particularly regrettable that the electoral roll can no longer be challenged after it has been gazetted.

Without a detailed reading of the individual cases it is not easy to see how far judges have been excessively technical in their judgments in election petition cases. But there are enough examples which show the need to review what are essentially technicalities defeating the cause of justice.

When election petitions have failed, the size of costs awarded against the losing petitioners has been large, a serious deterrent to the use of this important procedure for ensuring fairness in elections. Awards of costs should not be used in a way that acts as a major deterrent to bringing election petitions.

The Tribunal recommends that the law should be changed to ensure that challenges can be brought to inaccurate electoral registers. And consideration should be given to ensuring that costs are not a deterrent to reasonable petitions.

Part III Conclusions

The validity of the results

Much was wrong with GE13.  Did it affect the results? The Tribunal was presented with evidence from scholars that suggests that it may well have done. One had concluded that “gross malapportionment” of constituencies had probably had this effect. And the Merdeka Centre says in its report that without postal or advance votes BN would have lost the election. There were a number of constituencies where the races were very close, so it would have been possible to manipulate the outcome more easily.  One unsuccessful candidate gave evidence that there were 1605 missing votes in his constituency; he had lost by only 460 votes, and was convinced that the missing votes would have made the difference.

This evidence has the particularly serious implication that we are not talking about poor administration and mistakes, but that the actual result of the elections was affected, and the wishes of the people of Malaysia thwarted.

Legitimacy of elections

Legitimacy may be “legality”, but it can also refer to the acceptance of an institution (including an election); it is a matter of attitude. If a government is announced to have won an election but people do not believe that it won, this has very serious implications for the country, for the government itself may lack that acceptance of the people.

The whole electoral process too may come to be discredited. Why should people continue to turn out if they do not feel their vote makes any difference? Or they may turn out just to earn their bribe.

Who benefits?

Realistically the Tribunal was not destined to receive large number of complaints about flaws in the process caused by or benefiting PR.  They lost. BN, the winners, effectively boycotted the Tribunal process.

Nonetheless, it is not possible for the Tribunal to ignore the strength of the evidence to the effect that most of what was done was to the benefit of BN.  Not everything that is done for a winning party is done by it, of course. However, as a party, or as government, and with considerable influence over the EC, the finger must point largely to BN, as well as to its supporters and beneficiaries.

But of course no-one really benefits from elections that are not conducted properly.  

Systemic problems?

Lead Counsel suggested that the Tribunal should be concerned with whether the flaws if found were “systemic”.  Being systemic implies that they exist widely and over time. The Tribunal would not suggest that every constituency election was contaminated by the sort of failures that were attributed to it. Certain constituencies were marginal– or could be made marginal by gerrymandering. Though there might be weaknesses in other places, systematic and deliberate manipulation would occur where it can make a difference.  But such targeted fraud (for that is what it is) is rightly termed systemic: the system can and will do it where it is worthwhile.

Nothing, it seems, that happened in GE13 had not happened before, except where indelible ink was concerned, overseas voters, and changes in advance voting rules: where new opportunities had been created.  There is a considerable body of literature about Malaysian elections and how the system has been subverted.

Electoral System

Malaysia uses a system of voting and translating votes into seats (often called “first past the post”) that is common, and that often generates the sort of disproportion between votes and seats seen in GE13. To avoid this it requires strict adherence to the one person one vote one value principle; it makes boundary drawing of crucial importance.

A decision was made to adopt this system at the time of independence. It is unlikely that there will be much support for a total change of system; people are used to one system and often reluctant to change. But the Tribunal does briefly raise the issue of considering another system: one that ensures that votes for a party translates into seats. There are several different systems that ensure this.

It is also possible to change in a different way: to a system that ensures that no-one can win a seat when the majority of voters are positively against that person. This involves either a run-off second election if no-one wins over half the votes, or a preferential voting system under which people rank their choices among candidates.  All the Tribunal does is to suggest it might be worth giving some consideration to a change.

The Final Verdict

The electoral system is important, but is hard to change and needs much consideration. And the evidence suggests that it was not the real reason why the elections of 2013 have been so discredited.

About the real reasons, something can be done. Though weakened in some respects, the framework for an election process with integrity is there. It needs to be implemented, fully and with commitment. Criminal law needs to be enforced. Laws and principles on constituency delimitation must be properly applied. Staff need to be trained. Procedures must be formulated comprehensively and must be taken seriously.  A culture of compliance must be instilled.

The role of the EC is key to all this. It needs to be re-designed, and conceived as a truly independent body. Other countries have done it. It is from the EC that true change will come; without them no serious improvement will take place. The main reason we have Election Commission, supposedly independent, is that people will cheat. It is the EC’s job to minimise that cheating. It requires determination and constant vigilance.

At present the system fails to meet international standards in many respects. Most important (and in violation of what those international standards are designed to achieve) it fails the people of Malaysia. The inescapable conclusion must be that GE13 fell short in every one of those seven parameters for democratic election.