Introduction
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.
Conclusion
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”,
http://news.asiaone.com/News/AsiaOne+News/Malaysia/Story/A1Story20130504-420237.html,
Accessed on 4th May 2013.
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.
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