Election Commission of Malaysia

When we talk about electoral democracy we would be talking about democratic practices involved in a democratic election. Included within the framework are the fundamental political values, i.e. democracy, democratic practices & democratic Institutions, the rule of law, fundamental human rights and a just & honest electoral organization. Like other organizations established in a democracy, the electoral organization entrusted with the power to conduct elections should completely be committed to democracy and have the will to actively promote democratic ethics.

Democratic ethics, ladies & gentlemen, have ideally been outlined by the various international conventions. The adoptions of some of the fundamental elements found in the guidelines would help to establish some kind of electoral standard which enjoys not only the broad support of the people but also most importantly the attainment of a standard that is internationally recognized. To determine where exactly we are in terms of international standard, we would have to examine the legal framework governing democratic elections in the country.

In Malaysia the legal framework on elections does provide the basic ingredients of a working electoral democracy. Firstly the Federal Constitutions clearly determines the electoral organization and its inherent power to organize and to conduct elections. The Federal Constitution and the various election laws that have been produced prescribed both the electoral system as well as the electoral management process and mechanism.

The electoral system as you are already familiar is the simple system. The term as prescribed by law clearly indicates that election will be by direct vote of electors. The system has been chosen and determined by the country. The political framework, culture and geo-political background of the country had a good deal of influence over the choice of the system at that particular point time. If at any other point of time the country decides to change the system from simple, first past the post to the other system, i.e. proportional system, the commission will have no problem in managing that system. Please therefore do not ask the commission why we are sticking to the simple system and not the other as it is the country’s choice and not ours.

There is no ‘best’ electoral system suitable to all and no universally recognized standard attached to anyone of them. The choice of electoral system needs to be made with desired goals in mind. It must be understood by all that the effect which different kinds of electoral system can promote are ultimately contextual and depend on the specific cleavages and divisions within any given society.

Choosing an electoral system is one of the most important institutional decisions for any democracy. An electoral system can help to “engineer” specific outcomes such as encouraging cooperation and accommodation in a divided society, a point very much relevant to independent MALAYA in its infant stage by which cleavages and divisions are reduced significantly through cooperation and accommodation among the society divided in terms of race, religion, culture as well as geopolitical environment at that particular point of time. The International Handbook on electoral system specifically mentioned that in the choice of an electoral system an important consideration is whether a country is sharply divided along political, religious, ethnic or other lines and whether minorities are, in the process, going to be properly and equitably represented in the political system.

Electoral systems are the rules and procedures through which votes cast in an election are translated into seats won in the legislature. Electoral systems can also influence other aspects of the political system (e.g. development of the party system) as well as being of importance to the link between citizens and their leaders (e.g. political accountability, representation and responsiveness). The system chosen should also be able to give incentives to those competing for power to frame their appeals to the electorate in distinct ways. In divided societies such as MALAYA , then, for example, where language, religion, race and ethnicity represent a fundamental political cleavage, the electoral system chosen had actually helped to reward candidates and parties who acted in a cooperative, accommodating manner to rival groups, or they can punish these candidates and instead rewarded those who appeal only to their own group.

The choice of the electoral system within the context of a particular country can make a significant positive or negative impact on the electoral fortunes of the various political contenders. As far as we are concerned the simple system chosen had seen the negative impact on parties which failed to gain popularity (in term of seats obtained) and had even disappeared from the political scene. On the other hand there are parties whose leaders have been far sighted enough to undertake policy of accommodation and cooperation and had continued to gain seats (and power) devoid of any prospect of being wiped out of the political scene at all. In our case the choice of an electoral system had wisely been made such that it had in fact seen a major part of the political cleavages of our divided society properly addressed. The electoral legal framework was framed such that the main conflicts and differences between and among social groups had been wisely accommodated through a fair system of political representation. The system had in fact guaranteed political inclusiveness and representations for all, irrespective of race, religion, social or geographical origins and backgrounds.

Although it was conceded that the first-past-the post system would tend to be over rewarding (in terms of seats) the party with the largest share of the votes. We had clearly seen that the system had assisted in the formation of strong governments particularly important to the county so young in age yet with so much cleavages to contend. Furthermore during the early years of its independence large number of its people were actually unaware of the implication of what they did in the polling both. Yet wonderfully they opted for unity and had indeed made the right choice.

Alternative system may be considered when people have been found to have matured and understood the danger of the irretrievable mistake of making wrong decisions in the polling booth. I would make a strong conjecture here that changes to the simple system would only be made when social, political and economic condition of the country had been made strong and stable and the majority of the people themselves wanted changes to be made on the voting method. Although a small group had been agitating for a change in the method people in Malaysia by and large preferred the continuation of the present simple system which had given answers not only to political cleavages and divisiveness but also brought in strong governments for the past 40 over years.

As for the electoral management system we are quite close to the internationally recognized electoral standards. The electoral standards set for the country’s election had contributed to uniformity, reliability, consistency, economy and overall professionalism in elections.

I use the term “quite close” because as election functionaries we do recognize that in some areas the laws governing our elections remain inadequate. The inadequacy had in fact remained as painful thorn in the flesh of the electoral organization (EC) when failure to settle certain grievances became the subject of criticism, ridicule and insinuations.

In Malaysia the legal framework on election does provide the important elements for the establishment a strong electoral management process and mechanism but yet the overall framework clearly does not provide sufficient rooms for the Commission to maneuver and place itself completely in a commanding position to set up a completely level playing field during the election period. The absence of certain relevant component in terms of international electoral standards and practices would require studies to be made on the legal framework to reflect the current cultural, social, political, and other needs and realities.

Research work undertaken by some qualified scholars on our electoral system had produced the necessary indication that a review of certain aspects or components within the system was considered necessary to bring about the required changes to certain matters based on the current needs and situations within our country’s political and social environment. Reports from researchers on our system should catch the attention of our legislators as some of their suggestions are relevant to our current situation although some others are too revolutionary to be considered or adopted.

Another important factor which should be mentioned here is that to establish a working system completely free from the involvement of other organizations is not possible due to the existence of other laws actively operational during election. These laws are outside the jurisdiction of the E.C. but are considered relevant in exercising control and even restrictions during a time when complete freedom to move and operate party activities are absolutely necessary. The existence of laws pertaining to assembly (Police Act), the OSA, the sedition Act, the printing presses and publication Act, The Communication and Multimedia Act, Local Government Act, and by laws under local authorities and some others which are seen especially by opposition parties, rightly or wrongly to have given undue advantage, directly or indirectly, to the party in power.

These laws can be categorized as laws that are essential to the keeping of public order, peace and security, which are necessary and had proven to be very effective in securing the above objectives. However the imposition of too much restrictions, regulatory rules and security checks could be misconstrued as an attempt to undermine the concept and principles of human rights and freedom to organize party activities which form the basis of a free and fair election. Security no doubt should not at all be compromised as freedom to organize party activities without proper control maybe abused and when that happened it would certainly spell disaster for the country and for democracy itself.

Certain vital elements in the laws I have mentioned had over the years became part of the acceptable elements within the system. It is common knowledge that all opposition parties view them as obtrusive or providing for obstacles to the attainment of free and fair election and the EC could be seen walking on a tight rope to maintain the right balance to the democratic process of providing a free and fair election.

In spite of these difficulties the EC had been in complete control and had done very well in vital areas pertaining to the actual electoral conduct and process, i.e. Nomination, Poll, the Count and the pronouncement of results. Complete transparency had been achieved in those areas in spite of the fact that in carrying out those functions the EC had to rely on the honesty and impartiality of government officials. In general government officials, in terms of accountability, owe their loyalty to the government of the day. However in the conduct of election they maintained an excellent record of being non-partisan and their conduct during the past elections were indeed exemplary.

Earning the confidence of the people is considered the most challenging task for the Commission. So far so good. For the past 10 general elections we have managed to earn that credit. On the other hand it is also a completely challenging task for the Commission to earn and maintain the confidence of the opposition parties especially when all the time they harbour a sense of complete distrust for the government and collaterally for the Commission. Ironically what ever the Commission does has always’ been quaintly seen as working towards maintaining favorable conditions for the government and of course for the party in power. What is considered completely fair sometimes are pronounced as unfair and the built-in advantages enjoyed by the party in power and a complete manipulation of those advantages would during critical time completely wipe out any shred of confidence they may have over the whole system and the agency in charge.

When we talk about election management in terms of international standards, it is important that the legal framework on election should be so structured as to be unambiguous, understandable, transparent and should address all components of an electoral system necessary to ensure democratic election. What is really important to me as an important election functionary is the necessary components in the law which will enhance the credibility of and public confidence in the elections. The legitimacy of the government established under the system should not at all be subject to any form of post election outcry and examinations. I reckon this had always been the case in Malaysia .

How does a member of the public view somebody’s’ statement which says that determining the mode of campaign as none of the EC’s business. What exactly are we expected to do during the time when in terms of the conduct of a democratic election, democratic rules appear to indicate that freedom to campaign can be considered the most important element in the election process. Which other ways can we earn the confidence of the people other than being judged on our performance in the conduct of a free and fair election.

I believe that all aspects of the electoral Commissions’ establishment, composition, status and functions are relevant to the question of transparency in the electoral process. In term of the International standards and guideline, the legal framework should require that the Commission be established and should operate in a manner that ensures the independent and impartial administration of elections.

The Malaysian Electoral Commission was established under the requirement of the Malaysian constitution. In making the appointment the King (the appointing authority) “shall have regard to the importance of securing an Election Commission which enjoys public confidence”. In our context it is assumed that for it to enjoy public confidence it has to assume the role of a neutral organization and in the conduct of its business it is seen to be fair. The appointment by the King never seemed to have satisfied a small section of the political community. The Commission does not seem to be answerable to anyone but the King. Ironically the general public had formed their own conclusion that the appointment would be made only with the agreement of the Prime Minister although it is not stated so in the constitution. This kind of malaise created the obvious suspicions that the member, especially the chairman must always endeavor to please that master, although not well founded but somehow I consider it as a reasonable suspicion. To all these critics no amount of explanation could remedy all their misgivings over the issue. A small section of the political community had expressed their opinion that appointments could be made by and accountable to parliament. But as I have said earlier no system can be perfect or can provide proper answer or conclusive solution to a given point of discontentment in as far as electoral management is concerned.

When we talk about democratic electoral process, we always hear people mentioning about the need for a level playing field. The expression “level playing field, according to electoral guidelines required the fair application of the following to all political parties.

Resources (money and manpower)
Organization
Supporters to mobilize
Built in advantages

Built in advantages enjoyed by the party in power in Malaysia are many, including the right to call the shots, publicity over policy announcements and most of other public related exposures, including the support the ruling party may enjoy from a large number of privately owned media bodies.

In the process of my meetings with all political parties, especially the opposition I managed to gather a number of unsolved or unresolved matters which they consider as being the major obstacles to the establishment of a playing field considered level in our election.

In most developed democracies, government funds are generously been made available to all political parties. Government funds had not been made available to political parties taking parts in elections in this country. To my mind this is too much to ask for as the country may not be financially ready for it. In Malaysia political parties, especially the small and localized ones had not been able to mobilize enough resources to undertake campaign at national level. The opposition parties had always lamented that giant political organization such as the Barisan Nasional (party in power) had all the resources, (money and manpower) to undertake extensive campaign activities and garner all the support from all areas. The E.C. had no authority to interfere in party finance. Control of party finance in election had not been legislated, leaving every party with all the freedom to collect and spend whichever way they deemed proper to achieve their objectives. In my study of certain developed democracies I found that even with proper legislation those countries were not able to maintain a fair deal for all in respect of party internal financing as they were not able to determine a fair ceiling or quantum when everything is seen in the light of support each party got or about to get from the electorate and the whole community.

The other major complaint received was the problem of access to the state owned media and coverage by the print media. This is an area the Commission had not been able to provide satisfactory mediatory solution. The electronic media are regulated by laws which are not within the jurisdiction of the EC and neither can the EC interfere in their affairs even during elections as our own laws do not provide any such powers. Owners of newspapers (mainstream) had in the past been left to themselves to exercise discretionary options on the coverage of election campaign by all contesting parties.

Freedom to campaign is sometimes misjudged as being too restrictive, over regulated, or even oppressive. To me the freedom to campaign in Malaysia does exist although restrictions are imposed, depending on the general security situation during the election period. Threats to security do actually exist and not just being doctored or invented as some people thought they were. Issuances of permits are made by the police under the police Act and campaign freedom contrary to what had been alleged had never been compromised. Tight security measures undertaken may have been misconstrued as an attempt to deny rights to organize party activities during campaign period. The close check and scrutiny by the E.C. over the issuance of permits had somehow produced positive results in terms of impartiality of the police force. Cases of arbitrary refusal of permits by the police have of late been found to be very rare or none at all. You all are aware that I have tried to open up the democratic avenue for campaign, signifying the importance of ensuring freedom to campaign for all. Before the kite could take off the ground the string had already been snapped. I am still hoping that some kind of solutions could be found on this important matter.

In terms of party activities during the election the country had seen very little sign of overcharged or explosive campaign activities. Unruly behavior of supporters there maybe. The May 13 (1969) incident was a post-election conflagration. Even the campaign period in the 1969 election saw no sign of incidents considered detrimental to public order and security of the country, although the manner of campaign by certain parties had definitely manufactured sparks of racial ill-feeling, hatred and animosities. The outbreak of racial violence then should infact be considered as a blessing in disguise as people generally took lessons from there to preach tolerance and unity in this racially divided society of ours.

Attempts to change the record of non-violence were seen when small sparks of controllable violence appeared during last year’s by elections in Anak Bukit and Pendang in Kedah, although the theme or tone was no longer racial (it may be a reflection of the characteristics of Melayu baru). It is rather hard to gauge if these heavily charged election campaign spelt the beginning of similar or worse electoral campaign activities in the coming general election. In the case of the last two by-elections the impact of the whole resources of contending parties came to bear upon such a small area within such a short span of time. Looking at a more positive angle I would dismiss any suggestion that the various unhealthy activities and incidents appearing during those by-elections would again reappear on such a degree in the coming elections, in all the contested constituencies, as all form of party resources would not be so concentrated. Small incidents of no significant value there may be, but nothing on the richter scale as to shake the strong security foundation of our peaceful democracy.

Opposition parties in the country have long been harping on issues of what they claim to be lopsided treatment in respect of freedom to campaign. During an election they normally loaded their complaints on to the E.C. Allegations of money politics in the form of vote-buying and abuses of power pertaining to the use of public facilities or facilities owned by the state etc. all of which, being election offences, should make their way to the election court if proof of all the wrong doings could be produced satisfactorily by the aggrieved parties. Nothing had been proven as no case was ever brought to court. On the other hand those complaints were faxed out of the country to important international organizations and various interested NGOs’. They may have done so not out of their disloyalty to this country but out of frustration that their complaints found no channel at all to pass through. Whenever I had the opportunity to attend election seminars or conferences organized by certain international bodies, questions posed to me on most occasions were exactly the carbon copies of all those complaints. Of course on the question of campaign freedom I made attempts to give proper answers although stereotype in nature. My best defence had always been that being a young nation human rights and freedom should always be awarded restrictively as not to open too much rooms for abuses and endanger public order, peace and security. In a country where political cleavages and divisiveness could get out of control democratic rights and freedom should not be exchanged with disorder and insecurity. Malaysia had been blessed with fairly good leaders whose commitment towards the management of peace and security other than their commitment towards progress in all fields had amply been proven. Of course, such answers may not be convincing enough to people who live in an environment completely different from ours.

The international handbook on good electoral practices in fact recognized the need for young democracies to look for proper options when faced with a situation or political environment such as ours. However the guideline has, rightly or wrongly, put an emphasis on the need to allow International election observers. A particular opposition leader had recently made a proposal that the country should bring in observes for the coming election. If my opinion is asked on the matter my answer will be YES and NO. If at all observer groups would want to be accommodated into the system they must represent countries whose political and social environment not only appeared similar to ours but also the electoral system. I have had an experience with observers sometime ago particularly with a group consisting mostly of people from developed countries with colonial mentality thickly embedded in their skull. Right from the day I met them I knew that they not only had little knowledge of the country’s history of political cleavages and cultures but also with a background of different electoral system. What was most disappointing was that as soon as they landed the first people they met were members of the opposition parties. I thought then it was alright for them to do so except that when they started their actual observation work they were already convinced that elections in this country were never fair or free and polls were conducted unprofessionally. When I argue on the need for strict control to protect the sensitive nature of our political environment and culture their facial expression and body language lead me down to conclusion that they were suffering prematurely from some form of senility. All the good points about the excellent way in which the election process had been handled and that the principal of free choice had been completely adhered to did not seem to leave any impression on them as apparently their minds were wrongly focused on certain political issues, which should not form part of their business here. What became most painful to me was that the peaceful environment set on election day, the large number of turnout of voters, the orderly conduct of polling and counting, the obvious presence of freedom for people to make their choice in the polling booth gave little evidence that electoral democracy was working in this country. Do we have to welcome this kind of people again here? If at all they have to be accommodated the group should first be given extensive lessons about our culture and way of life and importantly about electoral democracy successfully being practiced in this country. Other conditions should also be imposed to ensure that they do not meddle in political affair of this country in the process of carrying out their functions as observers.

In terms of control over corrupt and illegal practices within the period of election, enforcement is completely in the hands of the police. The commission sometimes received reports of abuses of power and authority, allegation of vote buying activities, misuse of government machineries, etc all of which are channeled to the police for their action. The best channel would be the courts of law if proof of all the wrong doings are available. Candidates may file petitions and election courts will decide. In my meetings with political parties I gather that the independence of the judiciary had been suspiciously viewed so much so that the opposition parties are always reluctant to bring election cases to court especially when large expenditure is involved in the process. If that is how they view the whole passageway to freedom what can a small man like me say or do.

What I have just mentioned may be construed as minor weaknesses of the electoral system. Some changes to the law to eliminate these weaknesses have been made during the past 2 years. I must assure you all that those so called weaknesses had not been viewed too negatively by the general public in Malaysia as to cast any doubt on the legitimacy of the government. They are not of significant magnitude as to cause any harm on the principle of free choice and the establishment of legitimate government in Malaysia . Whatever weaknesses we have in the system, the E.C. managed to hold fast to its organizing ability to protect the democratic rights of the people to take part in a free election. In terms of determining their choice the Malaysian public taking part in election actually owns the election. Again I must stress here that Election based on free choice may be considered as real although certain points I have raised may seem to have some deprivative effects on the chances of small parties to win anything in the election. In conclusion I would say that in Malaysia the playing field cannot be considered as not level except that while the opposition front after much effort managed to put in some players the BN drowned the field with overwhelmingly huge consignment of fighting power and might and the Referee had a field day blowing the whistle.

Democracy, in what ever form it takes, is very much alive in Malaysia . Democratic elections conducted for about 10 times had resulted in the establishment of legitimate and responsible governments since the country achieved its independence in 1957. Good governance and the existence of well trained civil service had definitely helped to enhance that legitimacy. The country enjoyed gradual progress in development, a living example of a growing democracy not enjoyed by very many countries of the same category. Threats to stability are ever present. The political and social cleavages within the multi racial, multi ethnic and multi religious composition of its population require the right political chemistry and solutions. The existence of a few of what some people referred to as draconian laws are found to be absolutely necessary. In fact speaking as a private person I would in support think that the moderate use of such laws as the Internal security Act or/and , the seditious Act, had somehow made their contributions towards the Malaysian achievement as progressive, peaceful and stable democracy.

Tan Sri Datuk Seri Panglima Haji Ab. Rashid bin Ab. Rahman
Pengerusi Suruhanjaya Pilihan Raya