Constitutional (Postal) Voting Rights & Democracy
This article discusses alternative voting methods in upholding the rights of every Malaysian to vote.
SUARA MANDIRI Issue #10
The right to vote is the crux of every representative democracy. In Malaysia, it is articulated within Article 119 of the Federal Constitution, guaranteeing the right of every citizen to vote in an election, provided: (a) they have attained the age of 21; (b) is a resident in a constituency or, if not a resident, an absent voter; and (c) is registered in the electoral roll as an elector in the constituency they are a resident of on the qualifying date unless they are disqualified under the law. Further, Part VIII of the Federal Constitution expounds matters pertaining to elections, specifically the establishment of the Election Commission (EC) to ensure the equitable exercise of democracy - the right to vote for each citizen in Malaysia.
The importance of voting is indisputable. It serves as the primary opportunity for citizens to choose their representatives and leaders while championing principles and values in the interest of the nation. The political franchise is the backbone of a democracy, no less important than the other tenets and principles.
However, the Malaysian government has fallen short in making voting rights absolute for all citizens. The Constitution (Amendment) Bill 2019, passed by the Dewan Rakyat on 16 July 2019, has lowered the voting age in national and state elections from 21 to 18 years[1] but as of 2021, it has yet to be implemented.[2]
As a matter of fact, sufficient consideration has not been accorded to encourage or aid the voting process and this has reflected in low voter turnouts. According to the EC, Sabah state elections in 2020 only succeeded in obtaining a 66.61% voter turnout and a 56% voter turnout was attained at the Malacca state elections in October 2021. The recent Sarawak state elections saw slightly more than a 60% voter turnout. During the Melaka state elections, an elderly stroke patient was found to have spent RM200 to charter an ambulance to travel to his polling centre.[3]
Over the years, diasporic Malaysians have been discriminated against when it comes to casting their votes as our electoral system does not provide accessible voting for eligible voters. The 12th Sarawak state election was predicted to see about 250,000 Sarawakian voters living outside the state likely miss the chance to vote with the absence of absentee voting facilities, amid the increased risk of Covid-19 infection to travel home via public transportation and exorbitant airfares.[4]
The laws regulating elections in Malaysia allow only four types of nationals residing overseas to vote, referred to as 'absent voters'. Only military personnel, public officials, full-time students, and their spouses are eligible to vote in absentia by submitting their ballots to their respective high commissions or consulates.[5] All other diasporic Malaysians are unable to vote through a diplomatic office and must return to Malaysia whenever an election is called.[6]
This issue of Suara Mandiri discusses alternative voting methods in upholding the rights of every Malaysian to vote.
History of advocating for postal voting
Absentee voting dates to as early as during the Roman Empire, when Emperor Augustus had invented a type of suffrage where local senate members of 28 newly established colonies cast votes for candidates for the city offices of Rome and sent them under seal to Rome for the day of the elections.[7]
The United States, on the other hand, had experimented with absentee voting during the 1864 presidential election, amid the American Civil War. Soldiers who fought for the Union took part in voting either in campus or field hospitals under the supervision of clerks or state officials.[8]
While the United Kingdom first introduced voting by post after World War I to allow overseas service personnel to vote in the 1918 General Election. The Representation of the People Act 2000 was later introduced to make postal voting available on-demand to any British elector.[9]
In Malaysia, postal voting was introduced in the 1950s in British Malaya for diasporic citizens - service personnel, public servants, and students as well as their spouses. Notably, Malaysia, having retained the practice today, was ahead of other Commonwealth nations then as not all British colonies had introduced external voting prior to independence, and surprisingly, some of the remaining British Overseas Territories and former colonies still do not have it to date.[10]
The development of postal voting has not been without challenges. After the 2008 general election, then Opposition Leader Anwar Ibrahim alleged that postal votes have been tampered with by the ruling Barisan Nasional (BN), using Setiawangsa as an example where his party, Parti Keadilan Rakyat preliminarily won before 14000 postal votes came in and effected in the victory of a BN candidate.[11]
Following the creation of a Parliamentary Select Committee on Electoral Reform, diasporic Malaysian voters except those in Singapore, southern Thailand, Kalimantan, and Brunei were allowed by the EC to vote by post for the first time in the 2013 general election while Wisma Putra administered the process.
However, the 14th general election in 2018 (GE14) saw the EC announcing that postal ballots would be sent out by Pos Malaysia and would need to be returned by voters themselves to be received by the relevant constituency returning officer by 5 pm on May 9, the polling day. Since the postal ballot papers could only be printed after the nomination day, there were a measly six and a half working days for ballots to be sent out and returned by courier.
According to the delivery times for International Express Mail Service on the Pos Malaysia website, many postal voters would only receive the ballots after the polling day. Two civil society organisations, MyOverseasVote and Global Bersih then promised to assist diasporic postal voters denied of their rights, to bring legal action against the EC as well as the Malaysian government.[12]
Prior to GE14, BERSIH Sarawak had actually submitted a memorandum to Sarawak EC on 26 September 2017, demanding two electoral reforms as well as a dialogue session with the Director of the Election Commission in Sarawak. One of the demanded reforms was with regards to absentee voting. They urged the EC to allow Sarawakians and Sabahans residing in West Malaysia as well as West Malaysians working and studying in the Bornean states to vote by post.[13]
Current Posting and Advance Voting Methods in Malaysia
A Malaysian voter can cast their vote via postal voting if they are considered as absent voters or a service member of the police force, military or the EC.[14] [15] Those serving with the police and military are also eligible for advance voting. These groups have common circumstances, that is they are unable to return to their constituency on the polling day.
Previously, the law prohibited the use of postal voting for citizens residing close to Malaysia’s border (Southern Thailand, Singapore, Brunei, and Kalimantan Indonesia). However, the EC rescinded the law via a notification in the Gazette for the Malacca state elections in October 2021.[16] This allowed Malaysians residing in those areas to be eligible as postal voters. This was a welcomed response in light of the challenges Malaysian voters face to return to their constituencies in light of strict border controls due to the pandemic. However, this rescission must be noted to be only applicable for Malacca state elections, as it was gazetted specifically for the said elections.
Postal Voting
This section is for Malaysian civilians residing outside of Malaysia. Regulation 2 (c), (d), (e) and (f) of the Election (Registration of Electors) Regulation 2002 stipulates that Malaysians working with the Federal or State government or pursuing higher education abroad, along with their spouses, are eligible to vote via postal voting.[17] So, a Malaysian coincidentally abroad for a vacation on a polling day is not eligible to vote via postal voting. The voter must also have returned to Malaysia for a period of more than 30 days in the last 5 years prior to the dissolution of the Parliament or their respective State Legislative Assembly. This rule was rescinded for the Malacca state elections, and it is yet to be determined if this rescission is permanent.
Military and police personnel unable to vote during the early voting period are allowed to use postal voting despite being within Malaysia, subject upon application to their respective organisations via Form 1A.[18]
Voters can register as postal voters via filling up Form 1B found on the EC website. Malaysians wishing to register must do so before the dissolution of Parliament or their State Legislative Assembly and the form is sent to the EC via email or mail.[19] They will then be sent a ballot paper, Form 2, and envelope A and B[20] to be filled and sent to the returning officer at the specified time and place.
Advance voting
Advance voting allows members of the EC on duty for the election, police, and military personnel along with their spouses stationed outside their constituency and is unable to return in time for polling day to vote via postal voting.[21] [22] Advanced voting means voters vote a few days before the polling day. For the upcoming Sarawak state elections, voters registered as advanced voters will cast their vote 4 days before the voting day, December 18.[23] The state elections are to see 12,585 military personnel and spouses, 10,458 police personnel and spouses, eligible for early voting and 113 absent voters overseas.[24]
The process in which an advanced voter will vote on the specified day is similar to those casting their votes on polling day. The ballots cast will then be sent to the respective constituency and will be counted together with other ballots during polling day.[25]
During the Malacca state elections, there were 11,557 eligible early voters, consisting of 9,217 military personnel and their spouses as well as 2,340 police personnel.[26] The elections saw a high turnout of 89.9% for early voters[27] despite fears of COVID-19.
Challenges of Postal Voting
Postal voting is not without a string of challenges. In GE14, the biggest obstacle was the logistics of sending and receiving the ballot papers.[28] As the campaign period was short, a mere 11 days from nomination to election day, it was almost impossible for voters to send their ballot papers back to the election committee in time. Some voters opted to use courier services as they had faster shipping times, but the hefty fees of international couriers made it a non-viable option for most voters. There were also cases where voters only received their ballot papers after election day; a voter in Saudi Arabia received their ballot 13 days after polling day.[29] Another voter from Japan received her ballot late as it was Japan’s Golden Week during the campaign period, a week of public holidays.[30]
Apart from that, there were a total of 63 recorded cases of incomplete ballots because of wrong or missing information on the documents by the EC.[31] This is in part due to the incompetence of the returning officers of the constituencies for failing their responsibility of ensuring each ballot contained all the necessary information.
The lack of communication from the EC was another problem faced by diasporic voters as information on the overseas voting process and registration was not clear and little effort was made to ensure that foreign Malaysian missions had accurate information on postal voting procedures and requirements. Thus, many Malaysians were left confused: missing necessary forms required to be sent with their ballot papers, rushing to find Malaysian witnesses at the last minute, and unfixed postal voting application deadlines.
Moving on to more administrative issues, army and police personnel have separate IC addresses from their previous civilian ICs. Thus, if they were registered as voters with their civilian IC before becoming part of the army or police force, the EC would have to delete their civilian entries from the electoral roll as they are to be re-registered with their army or police IC. However, there have been cases where army/police personnel appear on the electoral roll twice, once with their civilian IC and another with their army/police IC.[32]
The issue of postal voters appearing on the electoral roll twice is not exclusive to army and police personnel. As there are no measures to prevent overseas voters from applying to be a postal voters twice, a total of 867 duplicate names on the postal voter list were detected in P074 Alor Setar.[33] However, only 766 of the duplicate names were identified before the ballots were issued. Hence, the EC would need to conduct a thorough investigation to ensure army and police personnel’s civilian ICs are all deleted and implement a more secure method of registration for overseas voters so that duplicate ballots are not sent to overseas postal voters.
Alternative voting methods
As the Sabah, Malacca and Sarawak state elections were held in the midst of a pandemic, fears of infection, travel restrictions and expensive air ticket fares are inevitable. These challenges are capable of influencing the decision of eligible voters to cast their ballots. For example, a Sarawakian voting in Mukah but living in Perlis might have to spend thousands of ringgits in airfare, akin to buying a ticket to Europe just to vote. The majority of people would perceive this to be a financial barrier impeding them from voting regardless of how much they want to perform their civic duty. Thus, the EC must explore other voting methods to overcome these challenges. The proposed solution must be cost-effective, accessible, and secure.
Solution 1: Expanding postal and advance voting for the average voter
It has been proposed for years to expand postal voting for Malaysians living within Malaysia but outside their states or far away from their constituency and not covered under the designated persons pursuant to r.2 of Elections (Registration of Electors) Regulation 2002 and r.3 of the Elections (Postal Voting) Regulations 2003. Opening advance voting would also allow voters to vote earlier on dates convenient for them.
Looking at the procedures and logistics available for postal voting and advance voting, it can be easily expanded to include the average citizen. A voter wishing to vote as a postal voter should be able to apply just like any Malaysian voter living abroad, receive their ballots and attached documents and send them to an address specified by the EC. The difference is the procedure would be inclusive of domestic postal voters.
The EC should also allow the average voter to register for early voting, regardless of whether they are involved in the election or living within their constituency. The EC can utilise early voting stations used for police and military personnel and expand them to cater to the mass civilians.
The implementation of these recommendations requires an amendment to the Election Act and its subsidiary legislations. Alternatively, the EC is also empowered by the r.3(1)(e) of the Elections (Postal Voting) Regulations 2003 to issue notifications to temporarily allow other groups of people to be eligible for postal voting other than the ones already provided in the regulations.
Solution 2: Location-based Voting
Alternatively, location-based voting may also be implemented. This is when a voter lives outside their place of voting and is unable to return on polling day. It would allow the voter to vote at a designated location nearby instead. This method can accommodate voters who are unable to vote in their constituency on polling day because of professional or financial reasons. For example, a Sarawakian student living in Kuala Lumpur who cannot afford to return to vote may opt to vote at a polling centre stationed near their location in Kuala Lumpur instead. Their vote will be counted in their original constituency on polling day.
In the United States, location-based voting is often cast via a special voter list and mobile ballot boxes, postal ballots, and other special methods.[34] Such implementation is possible and is similar to the operation of advance voting whereby eligible voters cast their vote at a polling station near their location and their vote would later be sent to their constituency. Early voting stations can be used to implement location-based voting.
Expanding voting methods to accommodate voters within Malaysia who are unable to vote in their constituency on polling day would only make voting more accessible to all, especially within disenfranchised communities.
Call for Action: Ensuring Accessibility
With the pandemic looming, Malaysians are anxious to deal with the process of elections. This concern must be addressed by the government and EC and voters must be ensured to not feel forced to weigh the odds between risking their health and exercising their right to vote during an election, especially during these unprecedented times.
Now, more than ever, proactive measures must be initiated to ensure accessibility of voting among the enfranchised. In comparison to other countries such as Switzerland and South Korea who have adapted their electoral processes of postal voting to the current circumstances and seen a satisfying record of voter turnout,[35] the electoral system in Malaysia has seen lacklustre changes in providing better accessibility for voters, specifically during the outbreak of COVID-19. These calls for changes are pivotal to promote transparency, take into account vulnerable voters, and improve civic engagement.
An election date convenient for the citizens to go out and vote must be fixed, and infrastructure for people with disabilities to vote must be improved on. Further, a voting period instead of a voting day should be implemented and absentee voting for persons who live outside of their electoral districts must be made a viable option. More voting stations and polling streams should also be introduced to prevent long queues.[36]
As it was suggested by The Coalition for Clean and Fair Elections (Bersih 2.0), an automatic voter registration system ought to be implemented as this would enfranchise 5.6 million Malaysians into the electoral process.[37] It is also proposed for the EC to remove the current requirement for overseas voters to spend at least 30 days in the country in the last five years to be eligible.[38]
Advance voting should be extended to absent voters, besides improving the voting conditions for military and police personnel and access to polling stations in remote and rural areas. In these trying times, health and safety measures should also be given importance in polling stations. In addition, voter education has also been recommended to increase voter turnouts.[39] It is crucial for these changes to be implemented for better accessibility, transparency, and opportunities for the people to uphold their inherent right to vote in a democracy.
We have witnessed the horrors from the Sabah state elections; the whole nation was left fumbling to thrive and survive due to the complacency of the campaign period at a time vaccines were unavailable. The Malacca state elections proceeded with more caution, but the risk could have been further contained and averted. Fresh off the Sarawak elections, it is in plain view of the dire need for alternative voting methods with a bare 60.67% voter turnout. Now that the 15th general election is imminent, it is of utmost importance postal voting be implemented before then and it is more urgent now than ever. After all, if citizens are deliberately deprived of their right to vote, would it still qualify as a democracy?
Editorial note: The Newsletter team of HAKAM Youth apologises for the delay in the November issue due to unforeseen circumstances.
References:
[1]Kelly Buchanan, ‘Malaysia: Bill Reducing Voting Age to 18 Passed’ (The Library of Congress, 2021) <https://www.loc.gov/item/global-legal-monitor/2019-07-18/malaysia-bill-reducing-voting-age-to-18-passed/#:~:text=Article%20Malaysia%3A%20Bill%20Reducing%20Voting,21%20years%20to%2018%20years> accessed 5 December 2021.
[2]Read further here - HAKAM Youth, ‘Youth Suffrage: Outliers of Democracy’ Suara Mandiri (2021).
[3] Fazlul Haque, ‘PRN Melaka: Sewa ambulans RM200 untuk keluar mengundi’ Harian Metro (Masjid Tanah, 20 November 2021) <https://www.hmetro.com.my/mutakhir/2021/11/779568/prn-melaka-sewa-ambulans-rm200-untuk-keluar-mengundi> accessed 5 December 2021.
[4] Ersie Anjumin, ‘Madius demands absentee voting rights before GE15’ New Straits Times (Kota Kinabalu, 6 December 2021) <https://www.nst.com.my/news/nation/2021/12/751813/madius-demands-absentee-voting-rights-ge15> accessed 14 December 2021.
[5] William De Cruz, Greg Lopez, ‘Discrimination by law: Malaysia's absentee voters want to be counted’ New Mandala (1 December 2010) <https://www.newmandala.org/discrimination-by-law-malaysias-absentee-voters-want-to-be-counted/> accessed 5 December 2021.
[6] Ibid.
[7] ‘Voting From Abroad’ Institute For Democracy and Electoral Assistance <https://www.idea.int/sites/default/files/publications/voting-from-abroad-the-international-idea-handbook.pdf> accessed 29 November 2021.
[8] Olivia Waxman, ‘Voting by Mail Dates Back to America’s Earliest Years. Here’s How It’s Changed Over the Years’ Time (28 September 2020) <https://time.com/5892357/voting-by-mail-history/> accessed 29 November 2021.
[9] ODPM: Housing, Planning, Local Government and the Regions Committee, Postal Voting (HC 400-I).
[10] Ibid 6.
[11] ‘One foot in the door’ The Sun (27 March 2008) <https://www.malaysianbar.org.my/article/news/legal-and-general-news/general-news/one-foot-in-the-door> accessed 29 November 2021.
[12] ‘Global Bersih: Election Commission sabotaging overseas postal voting system’ (BERSIH, 26 April 2018) <https://www.bersih.org/global-bersih-election-commission-sabotaging-overseas-postal-voting-system/ > accessed 30 November 2021.
[13] ‘Rose Supports Bersih in Call for Absentee Voting’ (ROSE) <https://www.sarawakrose.org/rose_supports_abersih_in_call_for_absentee_voting> accessed 30 November 2021.
[14] r. 2 of Elections (Registration of Electors) Regulation 2002.
[15] r.3 of the Elections (Postal Voting) Regulations 2003.
[16] Notification Under Paragraph 3(1)(E) For the Purpose of General Election for the Seat of the Legislative Assembly of the State of Malacca P.U. (B) 507.
[17] It must be noted that this rule was rescinded during the Malacca State Election whereby the notification by the EC made any Malaysian residing abroad eligible for postal voting.
[18] ‘Bagaimana Mengundi Pos Dalam Negara’ (Election Commission of Malaysia Official Portal) <https://www.spr.gov.my/ms/bagaimana-mengundi-pos-dalam-negara> accessed 2 December 2021.
[19] Ibid.
[20] r.8 of the Elections (Postal Voting) Regulations 2003.
[21] r. 27A of Elections (Conduct of Elections) Regulation 1981.
[22] r.3 of Elections (Advance Voting) Regulation 2012.
[23] ‘Urusan Pilihan Raya Umum Dewan Undangan Negeri (PRU DUN) Sarawak ke-12’ (Suruhan Pilihan Raya Malaysia, 24 November 2021) <https://www.spr.gov.my/sites/default/files/KM%20BIL%2029%202021%20%20MESYUARAT%20KHAS%20PRU%20DUN%20SARAWAK%20KE-12.pdf> accessed 1 December 2021.
[24] ‘Sarawak election on Dec 18 — EC’ The Edge Market (Kuala Lumpur, 24 November 2021) <https://www.theedgemarkets.com/article/sarawak-election-dec-18-ec> accessed 1 December 2021.
[25] r.20 of Elections (Advance Voting) Regulation 2012.
[26] ‘Melaka early voting starts tomorrow’ News Straits Times (Kuala Lumpur, 15 November 2021) <https://www.nst.com.my/news/nation/2021/11/745571/melaka-early-voting-starts-tomorrow> accessed 1 December 2021.
[27] ‘Melaka polls: 89.9 per cent turnout for early voting process’ The Star (Melaka, 16 November 2021) <https://www.thestar.com.my/news/nation/2021/11/16/melaka-polls-early-voting-process-over> accessed 2 December 2021.
[28] ‘Global Bersih Data Collection on Malaysia’s 14th General Election Overseas Voting Process’ Global Bersih <https://www.globalbersih.org/wp-content/uploads/2018/08/Global-Bersih-GE14-Data-Collection.pdf> accessed 3 December 2021.
[29] ‘Election Observation Report of the 14th Malaysian General Election’ PEMANTAU <https://komas.org/wp-content/uploads/sites/16/2019/04/PEMANTAU-Election-Observation-Report-of-the-14th-Malaysian-General-Election.pdf> accessed 29 November 2021.
[30] ‘Malaysia election: Malaysians abroad fret over whether their postal votes can reach on time’ The Straits Times (Petaling Jaya, 5 May 2018) <https://www.straitstimes.com/asia/se-asia/malaysia-election-malaysians-abroad-fret-over-whether-their-postal-votes-can-reach-on> accessed 2 December 2021.
[31] Ibid 29.
[32] Ong Kian Ming, ‘'Dubious' voters may decide GE13’ Malaysiakini (8 April 2012) <https://www.malaysiakini.com/news/194435> accessed 2 December 2021.
[33] Ibid 29.
[34] ‘Alternative Voting Methods and Arrangements: Benefits, Risks and Practical Considerations in light of International Standards and Good Practice, including in the Context of the Covid-19 Pandemic’ Office for Democratic Institutions and Human Rights <https://www.osce.org/files/f/documents/2/a/466794.pdf> accessed 3 December 2021.
[35] Department of Economics and Social Sciences, The COVID-19 Pandemic’s Effects on Voter Turnout (IZA DP No 14241, 2021) <https://ftp.iza.org/dp14241.pdf> accessed on 28 November 2021.
[36] Ashman Adam, ‘Bersih 2.0 tells govt to improve political system first instead of punishing voters’ (Malay Mail, 1 Oct 2021) <https://www.malaymail.com/news/malaysia/2021/10/01/bersih-2.0-tells-govt-to-improve-political-system-first-instead-of-punishin/2009914> accessed 28 November 2021.
[37] Asila Jalil, ‘Bersih 2.0 calls for expansion of postal voting’ (The Malaysian Reserve, 1 August 2021) <https://themalaysianreserve.com/2021/08/07/bersih-2-0-calls-for-expansion-of-postal-voting/> accessed on 1 December 2021.
[38] Ibid.
[39] Ibid.