31 July 2013

Election Laws : Postal & Advance Voting


The general election held in 2013 was a stepping stone for Malaysia’s democratic process. For the first time, advance voting was introduced to the nation – where citizens who meet the relevant criteria would be eligible to vote before the actual polling date. Furthermore, GE2013 marks the first time in Malaysian history where postal voters of a general kind abroad are allowed to partake in the voting process.

Nevertheless, one question remains: How much do we know about postal and advance voting? Is the nation – including all officials and candidates, well-educated enough to understand the procedure thoroughly and be able to prevent an abuse of procedure?

What is Postal Voting?            

            As the name suggests, postal voting would simply mean voting via post.

            In gist, voters who are eligible to vote via postal voting would first have to apply to be a postal voter. Upon acceptance of their application, postal voters would be given details - including what the voter has to bring, when and where to pick up his/her ballot, and more importantly, where to cast the vote. The postal voter could opt to cast the votes at the embassy by dropping their ballots into the ballot bag and have the embassy “post” the votes on their behalf; or to courier the vote back to Malaysia to an election official or any persons who would then submit the vote personally to the EC officials before the calculation of votes.

Once your application to become a postal voter has been approved, you will no longer be able to vote in person in Malaysia. This is to ensure that electors would not practice double voting. A person may only cast a vote if he or she is on the Electoral Roll, as it is a statutory offence to vote twice.

Who can be a Postal Voter?

According to R 3(1) Elections (Postal Voting) Regulations 2003, citizens who are eligible to register as postal voters includes absent voters who are certified by the Election Commission (“The EC”) to be an election officer who would be on duty on polling day; police and armed forces personnel; member of any public services who would be on full-time duty in a post outside Malaysia during polling day; a member of the EC; or a member of any category of persons designated as postal voters via notification in the Gazette.

An “absent voter”, as per R 2 Election (Registration of Electors) Regulations 2002, means a citizen aged 21 and above on the qualifying date, and is a serving member of the armed forces of Malaysia or other countries; public personnel who is on duty outside the boundaries of Malaysia on the polling date; full-time students overseas or who is living with his/her spouse overseas at the date of application for registration to become an elector. It is interesting to note that this regulation gives spouses of public personnel and serving member of the armed forces in Malaysia an option to become an absent voter.

What is Advance Voting?

Based on R 2, Elections (Conduct of Elections) (Amendment) (No. 2) Regulations 2012, under the system of advance voting, the registered advance voters would cast their votes earlier than the actual polling date. For instance, while the actual polling date for the 13th General Election was on 5th May 2013, advance voters had casted their votes on 30th April 2013 in 544 polling stations nationwide. The practice in GE2013 seems to suggest that advance voting is only carried out within Malaysia; eligible voters overseas could only vote via postal voting.

Who can be an Advance Voter?

            R 27A of the same regulation allows armed forces personnel, police personnel, General Operations Force personnel and their spouses who have already been registered as an elector under the Elections (Registration of Electors) Regulations 2002 to vote as an advance voter. R 27A further provides that the aforesaid serving members who are unable to vote on the advance polling day may also vote via postal voting.

            By cross-referring this regulation to R 2 Election (Registration of Electors) Regulations 2002 as well as R 3(1) Elections (Postal Voting) Regulations 2003, it can be observed that both the aforesaid members and their spouses have the option to vote via postal or advance voting, but only one of the option may be exercised per election.

Benefits of Postal and Advance Voting

Postal voting allows Malaysians residing abroad to cast their votes even if they are unable to afford the time or expenses to join the voting process in their homeland. This shows that no matter where a Malaysian may be, he/she could still retain his right to vote for the betterment of the country. Moreover, the Priority Envelope comprising Form 2, envelope A and B would not be given to those who did not produce their identification documents. In other words, one is not allowed to collect the envelope on behalf of another. This prevention measure ensures that unclaimed votes would not be misused. Hence, the risk of vote stealing can be reduced, if not eliminated.

Similar to postal voting, advance voting aims to ensure that uniformed personnel still secures their fundamental right to vote despite having to work on the polling day.

Postal Voting: The Drawbacks

Postal voting has always been criticized for its lack of regulations and enforcement. For instance, if abused, postal ballots may be issued improperly to phantom voters on the electoral roll or in the names of those known to be overseas who have not actually applied to vote by post. Apparently, there are allegations that this has been done in the past elections in order to dilute the votes of genuine overseas postal voters.

It is also commonly alleged that in advance voting, uniformed personnel cast their ballots under the heavy scrutiny of their commanding officers. If such allegation is true, this may result in the compromise of the secrecy of votes as it is conducted in a closed area.

Differences between Postal and Advance Voting

First of all, as can be seen based on the regulations, normal citizens who are permanent students or residing with their spouses abroad are only given the option of voting via postal voting. On the other hand, advance voting is an option only exercisable by public officials.

Secondly, unlike postal voting where there are different procedures to adhere to, advance voting is much like an ordinary voting. Voters would cast their votes using the ballot papers; their fingers would be stained with indelible ink; and the ballots would still be opened on the polling day at their respective polling stations in the presence of party agents.

            Moreover, while the regulations for advance voting provide that the ballot boxes shall be kept in a polling station until the commencement of counting of votes, the postal votes, as per R 10(4) Elections (Postal Voting) Regulations 2003, merely requires for the returning officer to make arrangements for the safe custody of such ballot boxes, but not the venue. This issue will be addressed further later on.

Integrity of the Ballot Boxes

While the law provides rules and regulations for the safekeeping of ballot boxes, not all would realize that the relevant regulations are merely general, and certain important details have yet to be regulated by the governing rules. Among others, the most controversial issue would be with regards of the proper safekeeping of the ballots. For instance, what venue can be deemed as a polling station? Who defines the standard of  “safe custody”? Who may have access to the storing room? And most importantly, how can the nation be convinced that the boxes are so well-kept and protected that the chances of tampering with the votes are close to none?

After the collection of votes, the EC will have to transport these ballot papers from overseas to their respective returning officers within the country. It is unclear as to the cut off point for these ballots papers to arrive to their respective returning officers. This uncertainty may open up the door for unjustified delays, thereby leading to opportunities for the ballots to be tampered with.

R 14(1) Elections (Postal Voting) Regulations 2003 provides that each postal voter’s ballot box shall be opened by the returning officer in the presence of the agents. However, the time to open the ballot box is not specified. Instead according to R 14(3), the power is on the returning officer to give 24 hours’ notice in writing to each candidate or his agent about the time and place where the ballot boxes and envelopes within would be opened.

Moreover, as have been mentioned earlier, the regulations merely require for the returning officer to make arrangements to ensure that the ballot boxes are safely kept. However, the regulations do not specify (like what has been done for advance voting) whether the ballot boxes ought to be stored at the polling stations or otherwise. This leads to two concerns: Firstly, what amounts to “safe custody”? In other words, how safe is safe? For some, keeping the ballot boxes in a locked room suffices the condition of safe custody; for others, the storage room ought to be guarded with strong security system or with the supervision of parties’ agent. Due to the uncertainties of the regulation, the returning officers retain the discretion in determining the ambiguities of this matter.

On the other hand, in relation to the safekeeping of advance votes, R 27B Elections (Conduct of Elections) (Amendment) (No.2) Regulations 2012 provides that the ballot box containing the advance ballot papers will be kept in the safe custody of the returning officer of respective election region or in accordance with any arrangement approved by the EC. By cross-referring this regulation to Elections (Advance Voting) Regulations 2012, R 21(g) provides that the ballot boxes must be kept and locked away a safe in the polling station until the day and time fixed for counting to commence.  It is rather doubtful as to the integrity of the polling station in which the ballot boxes will be kept. 

The Elections Act 1958 (Act 19) defines “polling station” as any room, structure, vehicle or vessel at the place appointed under Section 7, set apart and equipped for the purpose of polling and counting of vote. The issue arises as to which exactly is the “polling station” the regulation is referring to?  The integrity of the safekeeping is utmost important and the scope of “polling station” ought to be defined as clear and precise as possible to prevent discrepancies. It may be argued that the wide interpretation of polling station to include any vehicle, vessel or place appointed under section 7 may result in excessive discretion given to the returning officer in deciding the type of place to keep the ballot boxes.

The common practice would be to keep the sealed boxes in the police lock-up in which they will only be taken out for vote counting on polling day. EC workers are at liberty to check on the ballot papers from time to time without the presence of any polling agents. At some instance, the boxes are allowed to be removed from the police lock-up and kept at a different area under the observation of police officers until the polling day. The question arises as to whether the safekeeping under the custody of returning officer is reliable? Who else would have access to the safekeeping until the polling day? What is the integrity of the arrangements approved by EC?

R 27B further provides that the ballot box will be kept until the counting of votes on the polling day. On the same note, there appears to be uncertainty arising from “kept and locked… until…time fixed for counting to commence” as per R 21(g). When exactly should the returning officers open the postal voters’ ballot boxes on the polling day? What happens when the advance ballot boxes failed to arrive in time either for counting or final tally without any valid reason? Furthermore, supervision by parties’ agent during the custody is not allowed. Therefore, there is a need for check and balance mechanism so as to ensure the sanctity and integrity of the safekeeping of postal voters’ ballot boxes.

Suggestions for Postal Voting & Advance Voting

The names of retired police and military personnel should be updated and be removed from the electoral roll of postal voters. We believe that opportunities and allegations for vote manipulation can be reduced if the regulations provide that advance voting for uniformed personnel would only be allowed strictly by way of application to the EC officers. In other words, the eligibility of uniformed personnel to be categorized as advance voter should not be allowed automatically.

Apart from that, it is our opinion that the tallying of postal and advance votes should be completed on the same day or before the actual polling day. This should be conducted in the presence of all political parties, documented, and published, and later reconciled into the main voting list. If the result of the postal ballots is published to the public before the actual polling day, the final outcome of the postal votes would definitely hold more credibility in the eyes of the citizens. Furthermore, the EC should be held accountable to the changes, if any, to the final result of postal votes. By taking this measure, the EC and all relevant officers would be able to negate all allegations of vote-tampering, a practice which have apparently been prevalent in many of the past elections.

The ballot boxes should be kept with a neutral party mutually agreeable by all political parties. In United Kingdom, upon receipt of a postal ballot pack in the post (or of the postal ballot paper and postal voting statement if sent separately), the returning officer would place it inside the postal voters' ballot box allocated to the particular constituency or ward. Candidates and their agents, representatives of the Electoral Commission and observers accredited by the Electoral Commission are entitled to observe the opening of postal ballot packs. The returning officers there are mandated to give candidates and their agents at least 48 hours' written notice of the time and location of every opening session of postal ballot packs.

          Another prevalent issue during the counting of votes is the integrity of the principal counting area. In almost every general election, there would be allegations of loss of electrical supply at the counting areas during the crucial counting period. Sometimes, there would be actual occurrence of an accidental cut in the electrical supply. Unfortunately, the perception which arises out of the scenario would lead to the suspicions among people that acts of tampering with the votes may have taken place during the blackout. In all fairness, probably nothing happened during the alleged blackouts. Nevertheless, the key in any election – especially in a national election which determines the next ruler of a particular nation and with so much at stake, the least EC could do is to address this perception and to find solutions to this recurring issue. For instance, EC may conduct the final calculation of votes at a brightly lit area with stable electrical supply. 

            While we are dealing with the issue of the unstable electrical supplies, we can’t help but wonder, are school halls the best voting venue available? While school halls may provide an easy access and is a cheaper alternative, but cheap and easy doesn’t quite cut it in this situation. The best voting and tallying venue would be a place where there are CCTV settings, with a guaranteed supply of electric all night and monitored by an independent EC. This is cost efficient and at the same time, it provides a recording of the entire voting up to counting process. In addition, we propose for all Vote Tallying Centre to be backed up with a generator in case of unexpected cuts in the electrical supply. This would definitely promote transparency in the process of votes being tallied, and get rid of unnecessary suspicions from the public eye.

               Late arrivals of ballot boxes ought not be allowed to be counted and should be disqualified. The time for the arrivals of ballot boxes should be regulated as specifically as possible. We suggest that all ballot boxes including postal and advance ballots should arrive at 3pm on the polling day. Any late arrivals should not be entertained.  

            Apart from that, in the long run, we believe that Malaysia would be more than capable of running and maintaining a computerized voting system. By relying on technology for citizens to vote, the votes would be tallied instantaneously within the computerized system, thereby leaving little to no space for the database to be tampered with.

However, be it computerized or traditional, every voting system should be heavily regulated and enforced by an independent body or a joint committee. The rules and regulations of election should not only be comprehensive, but also comprehendible – thereby allowing every laymen the platform to be educated about the voting regulations in Malaysia, and also to be so articulate and comprehensive that little discretion is retained by the EC. If the regulations governing the procedures are clear, precise and unambiguous, no party can circumvent the result to their own advantage.

            Ultimately, it is not the people who vote that counts, it is the people who count the votes that matter. Therefore, it is crucial to have a newly elected EC officials selected by a joint committee, participated by both Barisan Nasional and Pakatan representatives in order to call for a fair and clean election. Alternatively, such EC could also be a completely independent body, where its officers are carefully chosen from eligible members of the public to assist in a fair election.


Introducing postal and advance voting is an important, albeit small, step in the right direction for our country. With the necessary tweaks to the system, the future general elections could finally be devoid of all unnecessary suspicions and promote a transparent election. However, we must say that no matter how tight the rule becomes, or no matter how much we tweak the rules, the key to the election process is the integrity of the people behind the EC. The EC, being the referee in such an important process of our governance, must not only be seen to be neutral, but must actually be neutral.

Written By:
1. Wong Jyh Ling
2. Sofia Qaisara Chan

Research Team:
1. Rebecca Pang Huan-Ying 
2. Tan Shwu Yunn 
3. Sofia Qaisara Chan
4. Wong Jyh Ling

Other References:

1.     Lou Joon Yee, “Every Postal Vote Counts”, http://www.fz.com/content/every-postal-vote-counts, Accessed on 22nd July 2013.

2.     My Overseas Vote, “The EC Chairman and Deputy Chairman Should Not Show Off Their Ignorance of Election Regulations by Blindly Defending the Indefensible”, http://myoverseasvote.org/2013/04/26/the-ec-chairman-and-deputy-chairman-should-not-show-off-their-ignorance-of-election-regulations-by-blindly-defending-the-indefensible/, Accessed on 30th May 2013.

  Jean Sim, “Overseas Voter: A Malaysian Story Shared”, http://news.malaysia.msn.com/elections/overseas-voter-a-malaysian-story-shared, Accessed on 30th May 2013.

4.     Asia One News, “Malaysia election: Boxes taken out for inspection of new ballots”,

5.     The Star Online, “GE13: Malaysians overseas to vote on April 28”, http://elections.thestar.com.my/story.aspx?file=%2F2013%2F4%2F15%2Fnation%2F20130415222628#.UfdA_dJHIQk, Accessed on 15th April 2013

6.     Sean Augustin, The Edge Malaysia, “GE13 EC – Don’t Confuse Postal and Advanced Voting”, http://www.theedgemalaysia.com/political-news/237163-ge13-ec--dont-confuse-postal-and-advanced-voting.html, Accessed on 28th May 2013.

29 July 2013

Wong Jyh Ling joins RWY

RWY welcomes Wong Jyh Ling to Team RWY. She will be a pupil under Richard Wee. She was a member of the MMU Moot Team, and will be a welcomed addition to the firm. 

09 July 2013

Sarah steps up at RWY

Richard Wee & Yip is pleased to announce the promotion of our Associate, Puan Sarah Kambali; to now, Senior Associate. 

Sarah has been with RWY since 2010 and was in fact Richard Wee's Pupil back in 2007. She had upon completion of her Pupilage, joined another establishment before re-uniting with Richard at RWY. 

Sarah is a valuable member of Team RWY and the Firm congratulates Sarah.