By Datuk Ambiga Sreenevasan | The Malay Mail
THE Election Commission (EC) in Malaysia is constituted under Article 114 of the Federal Constitution. Commissioners are appointed by the Yang di-Pertuan Agong after consultation with the Conference of Rulers.
In appointing them, the Constitution provides that the Yang di-Pertuan Agong “shall have regard to the importance of securing an Election Commission which enjoys public confidence ...” Commissioners cannot be removed from office except on “like grounds and in the like manner as a judge of the Federal Court”.
It goes without saying that the EC is duty bound to act in the interests of the rakyat. They are obliged to act impartially and fairly, such that they enjoy public confidence. And they have all the powers and protection that they need to be fearless and fiercely independent.
Sadly, the reality is otherwise.
This is in part due to the fact that in previous years, the results of our elections were predictable. One party always won with a strong majority.
Although, we have generally had a respectable voter turn-out, the public were resigned to the outcome of our elections and there was an acceptance that the EC ran the elections in accordance with the wishes of the government of the day.
Not until 2008 did the EC come under serious scrutiny by the public. Not until 2008 did the EC face the challenge of having to justify its actions, and prove its independence. Not until 2008 did the public really wake up to the reality that the EC played a pivotal role in determining the outcome of an election.
The often used argument that our elections must be fair because the Opposition had won so many seats in 2008 is flawed. It is not a question of how many seats were won and by whom. It is about whether the electoral system is fair. And if it is fair, it matters not who wins the seats. It only matters that the will of the people is reflected in the results.
It is precisely because our electoral process has not provided an even level playing field for all candidates, that Bersih 2.0 put forward eight demands that are the minimum that must be met before the 13th general election.
Prior to the rally of July 9, 2011, the EC went on a massive campaign to convince the public that none of the demands of Bersih were justified. Not only that, the EC representatives displayed their partisanship when they entered the Barisan Nasional vs Pakatan fray making no excuses for where their loyalties clearly lay.
Nevertheless and to its credit, after Bersih 2.0, the government set up the Parliamentary Select Committee (PSC) to look into electoral reform. This was a momentous move. One that was progressive and one that met the cries of the people for change.
In fact it is a move that is capable of going down in history as a turning point in Malaysia — but if and only if all the electoral reforms are implemented prior to the 13th general election.
Furthermore, if the PSC recommendations and genuine electoral reform are ignored, it would be an insult to the rakyat and to the PSC.
The government must allow the PSC to finish its work, present a report and implement meaningful electoral reform before the 13th general election. Anything less will leave the rakyat feeling shortchanged.
Yet, whilst I am prepared to assume the good faith of the government to implement genuine reform after the PSC report, the information that is received as to what is happening on the ground gives cause for concern. The reports of unusual movements of voters across constituency boundaries, the inexplicable increase in additions to the electoral roll in certain areas and the registering of foreigners are alarming.
The EC seems to react to rectify errors on the roll only when it is pointed out to them.
Then there is the worrying trend of political violence that appears to be on the increase and seems to have the tacit support of the ruling party.
The open use of public funds to win the affections of the people continues unabated.
So how can we be sure the government is sincere about electoral reform? This is where the EC comes in. If the EC would only do the job it is entrusted to do, electoral reform can indeed be a reality.
Bersih 2.0 has always maintained that the eight demands made by them can be implemented even before the PSC issues its report. Like the implementation of the indelible ink which was a welcome move.
What about overseas votes, postal votes, absentee voters which should include all overseas voters, cleaning up of the electoral roll, a 21-day minimum campaign period and a free and fair media? All of these can be implemented immediately.
What is holding the EC back? Why are they reluctant to allow International Observers when this is a good way to prove our elections are indeed fair?
As to election offences why can’t the EC just see to the implementation of the Election Offences Act? Enforcement teams set up under the Act must ensure that “written laws relating to elections are being complied with” (S27E(a)). Under s4(5) of the Elections Act 1958, an enforcement officer appointed shall have all the powers of and perform all duties given to him for the enforcement of laws relating to elections.
The EC complains they have no powers to prosecute electoral offences. That is true. But they have a raft of legislation to help them ensure compliance and they are fully protected under the Federal Constitution.
Even if they cannot prosecute, they owe it to the rakyat to monitor and lodge police reports if offences are committed. Otherwise why have the legislation at all? Electoral offences include bribery and treating which goes on openly and blatantly with no-one being called to account for it.
Until and unless the EC shows they mean business, electoral offences will continue to occur. If they continue to occur unchecked, it can only mean the EC is allowing it to happen.
The EC in India has issued a Code of Conduct that is interesting. Amongst other things, it makes clear that the party in power cannot use its position for electioneering. For example, ministers are not allowed to use the government machinery and amenities to promote their party. The government is not allowed to promise money for votes or to promote themselves for the purposes of elections using public funds. There are many other salutary provisions in the Indian Code of Conduct.
The EC in Malaysia ought to consider implementing such a Code of Conduct. I dare say that there are many on both sides of the political divide who have enough confidence in their own abilities to accept such a move.
The EC has much to answer for.
One other issue is the 2003 re-delineation exercise which is heavily skewed in favour of the government. Less than 20 per cent of the popular vote is required for the ruling party to obtain a simple majority.
The malapportionment is so stark that, for example, one third of Selangor state constituencies have more constituents than the state’s smallest parliamentary seat, Sabak Bernam.
Another example is that nine parliamentary constituencies and 13 state constituencies in Selangor span two or three local authorities.
This not only violates the guidelines under the Federal Constitution for redelineation but violates the trust of the people.
The EC was clearly complicit in this act of re-drawing constituency boundaries to favour the ruling party. These amendments went through Parliament unnoticed by the unsuspecting public. But it is the EC that must search its conscience on the propriety of its actions.
As it stands, the EC have not inspired confidence in its general attitude that they are only “election managers” and nothing more.
Under Article 113, the EC shall conduct elections to the House of Representatives and Legislative Assemblies and this includes the onerous task of constituency re-delineation. It does not say that they are to only “manage” the elections. Conducting elections requires much more, which explains the important status the EC is accorded under the Federal Constitution.
Often the EC’s response has been that it makes recommendations for reform but the government may not implement them. The answer then is for the EC to make the recommendations for reform public and the rakyat will surely support it if the recommendations are sound.
In an election that may prove to be contentious the EC must all the more demonstrate impartiality. Each and every member of the EC must consider their duty to the rakyat carefully.
I appeal to them individually. Serve the rakyat please. If you cannot, or if you do not like the way the EC is conducting itself but are unable to do anything about it, then come clean and do the honourable thing. If you do, you will at least earn the respect of the people for standing up for them.
Datuk Ambiga Sreenevasan is Bersih 2.0 chairman and former Bar Council president