(New York, March 5, 2008) – Government restraints on expression, assembly and access to state media will deny Malaysians a fair vote in the March 8 general elections, Human Rights Watch said today.

The authorities’ manipulation of the electoral process appears aimed to ensure that the ruling coalition maintains its two-thirds parliamentary majority.

“Once again, elections in Malaysia are grossly unfair to the opposition,” said Elaine Pearson, deputy Asia director at Human Rights Watch. “Malaysia’s ruling coalition is too comfortable with the status quo to allow reforms that would level the playing field.”

On March 8, Malaysians will vote for the national parliament. Since 1969, the ruling Barisan Nasional, a coalition consisting of 14 parties, has held a two-thirds majority in parliament, which enables it to amend the constitution at will. Opposition parties currently hold 9.6 percent of the seats in parliament.

Freedom of expression, association and assembly

Malaysian law and practice allow free campaigning for the ruling coalition while placing severe restraints on the opposition. For instance, Prime Minister Abdullah Ahman Badawi on March 1 was able to hold a rally of 20,000 supporters. But police have repeatedly blocked attempts by opposition parties to hold election rallies by refusing to issue the permits required for any gathering of four or more people.

In November 2007, the Coalition for Clean and Fair Elections (Bersih), a loose alliance of almost 70 civil society organizations and several political parties, organized an orderly march and rally by some 40,000 Malaysians. In response, police used excessive force, including tear gas and chemical-laced water on peaceful protesters.

The government has routinely used the specter of ethnic violence to deter public demonstrations and silence government critics. On February 16, three days after Abdullah dissolved parliament, police officers used tear gas and water cannons to disperse a peaceful crowd of some 200 Malaysian Indians from the Hindu Rights Action Force (Hindraf). Hindraf has not been permitted to register as a political party, and has repeatedly been denied permits when they sought, such as on this occasion, to hold a peaceful demonstration.

“When opposition leaders and civil society groups critical of the government try to organize rallies, they are blocked at every turn,” said Pearson. “Yet the usual excuses about unruly protesters and blocked traffic are never mentioned when the ruling coalition wants to get its supporters out on the streets. ”

The government has long threatened opposition politicians with provisions of the broadly worded Sedition Act. In addition, since the draconian Printing Presses and Publications Act places the burden of proof on defendants in defamation cases, opposition parties are self-censoring for fear of being hit hard by libel suits if they critique the establishment.

Curbs on the media

Government interference in media reporting is not new to Malaysia, but has become even more contentious during election campaigning. An election observer in Malaysia told Human Rights Watch that monitoring of state television and radio had turned up no opposition candidate presence. The state media are the two most important avenues for candidates to communicate their messages to voters, particularly those in rural areas.

In late January, Bernama, the Malaysian National News Agency reported that Deputy Information Minister Ahmad Zahid Hamid conceded the lack of fairness in the state media. He said that the ministry would need to study “whether allowing opposition leaders to campaign through Radio Television Malaysia in the next general election will benefit the people.”

Freedom of the media is further hampered since all private free-to-air television channels are owned by the United Malays National Organization (UMNO), a founding member of the ruling coalition and Malaysia’s largest political party.

Because Malaysian law requires all publications to obtain permits to operate on a yearly basis, the state can easily shut down those that are critical of the government. The minister of internal security, who is currently also the prime minister, has discretion to grant, revoke or suspend any publication prejudicial to public order, morality or security, or that is likely to alarm public opinion. Newspapers such as the Tamil language daily, Makkai Osai, are self-censoring to avoid being shut down.

On February 15, the online Malaysiakini site reported that the Chinese-language Oriental Daily editor issued an election-related “guideline” to staff. The guideline suggested the newspaper should avoid placing opposition news prominently, mentioning the opposition’s campaign to block the Barisan Nasional’s goal of a two-thirds majority, or discussing any disputed issues in Chinese communities. The Oriental Daily has had difficulty renewing its license in recent years.

“The Malaysian government has ensured that state radio and TV only cover the ruling coalition and that newspapers report on the opposition at their own risk,” said Pearson.

Irregularities in electoral roll registration and certification of election results

Irregularities in the voter rolls and other elements of the electoral process raise concerns that the government will seek to manipulate votes in closely fought districts. While some individual problems may be simple error, they highlight the need for effective and impartial monitoring by the Election Commission and national election monitors.

Bersih, the coalition for clean and fair elections, has documented severe irregularities in the voter rolls. It found that in several areas a large number of voters were suddenly transferred en masse from one district to another. According to Bersih, some voters discovered that their electoral registration was changed without their knowledge to locales outside their home districts.

In one case, a voter found that her registration had been changed back to a residence she had not occupied for 14 years. Others have found that despite registering a change of address some time ago, they have not been reassigned to polling stations reflective of their new addresses. Still others, who had never registered, found that their names mysteriously appeared on the electoral roll. One voter in Penang went to register, only to find that she allegedly had done so when she was 17 months old. Some voters who used the mail to register to vote discovered registration procedures had not been completed in time for them to be eligible to vote in the upcoming election.

Other anomalies reported by Bersih involve multiple registrations, in one case 40 individuals are registered at a single address. In other cases, family members living together are listed at different addresses. Other registrations use nonexistent addresses. Almost 9,000 voters who were born more than 100 years ago (two were reported to be 128 years old) are still enrolled to vote, raising suspicions about phantom voting. No matter what the offense, the voter roll, once gazetted, cannot be challenged in court.

Bersih is also concerned with postal voting, limited to police and army personnel, and overseas students. More than 221,000 voters use postal votes, but the tallied votes are not necessarily counted among those from voters’ home districts. Although the Army Div 2 Base in Georgetown, Penang, houses only a security guard, some 500 voters are registered to that address. A lack of transparency raises questions about how votes are assigned, including concerns that they may be arbitrarily allocated to benefit districts where the vote is close.

“Voters in Malaysia deserve a chance for every vote to count and count equally,” said Pearson. “Given the vast array of anomalies in the electoral rolls, this looks increasingly unlikely.”

Human Rights Watch urged the Malaysian government to protect the constitutionally guaranteed rights to freedom of expression and assembly for all parties. The government should not use laws to unfairly penalize opposition politicians, and it should ensure that all political parties have equal access to state media. Human Rights Watch called on national election monitors to thoroughly investigate any claims of electoral fraud and irregularities, and to provide for greater transparency by posting vote tallies outside polling stations before votes are transferred to the Election Commission.

http://hrw.org/english/docs/2008/03/04/malays18204_txt.htm

The stunning announcement was made at a press conference in Putrajaya this afternoon – four days before polling.

EC chairperson Abdul Rashid Abdul Rahman said the commission was obliged to make a “firm and final decision to ensure the smooth conduct of the 12th general election”.

“Following legal advice and looking at the issue of public order and security, the EC… has decided not… to introduce the use of indelible ink,” he said.

“The EC views these issues seriously, as the election process and public order and security cannot be compromised,” he added. “The EC deeply regrets its decision.”

Abdul Rashid said the use of indelible ink would not be effective as the country’s constitution allows those who refuse to have their fingernail marked with the ink to still be issued with a ballot.

He added that the use of the indelible ink could infringe the constitutional right of a voter to cast his vote, especially if the commission tries to bar someone from voting for having an ink marked in his finger.

“From a practical point of view, the issuance of a ballot paper to such a voter would render the EC’s proposal meaningless and will not bring about a positive result, whilst having the potential to create misunderstanding as well as altercations and arguments at polling stations,” he said.

He added that the Federal Constitution gives Malaysians the right to vote and a black mark on the fingernail should not bar people from exercising this right, he said.
The loophole can only be removed with a constitutional amendment, which requires a vote by parliament, which has been dissolved for elections to take place.

Also present at the press conference were attorney-general Abdul Gani Patail dan inspector general of police Musa Hassan.

Police reports lodged

Abdul Rashid also said there were reports made to the police alleging that certain quarters had purchased indelible ink from abroad with the intention of creating confusion and suspicion as to the status of voters.

He added that police reports were lodged in Kelantan, Perlis and Kedah between Feb 16 and 21 and as a result four individuals are being questioned by the police.

“Their intention is to create confusion and suspicion as to the status of such voters,” he said.

“This may cause chaos at polling stations which, if widespread, may be difficult to control.”
“The EC views these issues seriously as the election process and public order and security cannot be compromised,” he said.

The indelible ink was to be introduced for the first time in Malaysia as part of efforts to enhance transparency.

In line with this, along with the introduction of the ink, the EC had also allowed for the casting of postal ballots to be observed by polling agents and the use of transparent ballot boxes.

The EC believed that the changes would quell some of the allegations that Malaysian elections are not free and fair.

In preparation for the use of the indelible ink, the EC had previously said that it would buy approximately 48,000 bottles of indelible ink worth RM2.4mil from India.

Women voters had also been repeatedly reminded to remove their nail polish before going to the polls on March 8, as it would be difficult to apply the ink otherwise.

Fears of multiple voting

However, even before today’s about-turn from the EC, questions were already being asked as to how the commission can compel voters to apply the ink as the Election (Conduct of Election) Regulation 1981 has not been amended to include the use of the indelible ink.

The EC responded by stating that voters who were against the use of indelible ink would have to fill out a form seeking to be excused before casting their vote.

The opposition has two days ago ticked off the EC for appearing to have second thoughts on the introduction of the indelible ink.

R Sivarasa, the candidate for Selangor’s Subang, argued that the ink would stop possible incidences of multiple voting.

“They misled all Malaysians, not only yourselves, the voters of Malaysia and us, that they would implement the (use of) indelible ink – they also issued numerous statements about how much indelible ink would cost and they said they would buy it.”

related posting:

Ink check: Rashid plays ‘hide and seek’?

Sim Kwang Yang

As I write, on 29th February 2008, a week before polling day, I picked up a copy of the Star.

In the 38 pages before the business sections, among all the election stories and the pages and pages of lucrative advertisements, there were only three news reports about the opposition. Most of the headlines were very complimentary reports of BN leaders and their candidates. There was more of the same in the Metro and other sections.

Finally, on page 36, there was a column article on Lim Kit Siang and his son Lim Guan Eng. The columnist seems to make an effort at impartiality, but what can any Star columnist do but pour cold water on the opposition.

Star is a national daily owned by the MCA, so you would expect them to read like a BN party organ during election time. But then, I do not have to examine the other English dailies, or any Chinese, Bahasa Malaysia, or Tamil newspaper for the matter, to know that our national media has turned into a giant cog in the publicity machinery of the ruling Barisan coalition.

The publicly owned TV stations are even worse. They have even more to be abhorred because they are funded by the national coffer, and should serve the citizens rather than the political interests of the ruling parties.

Judging from the nightly 8 o’clock prime time news that comes on everyday, you would think that the opposition parties and their leaders do not exist. As the BN supreme leaders lash out at the opposition, you get the surreal impression that they are engaged in a bizarre bout of shadow boxing.

Whenever there is any story covering the opposition parties, it is bound to be something very damaging.

Elections in the US

Such unashamed partisanship on the part of the national media is solid proof that the election is far from free and fair. It also puts paid to the oft-repeated lie that Malaysia aspires to be a First World nation.

Many Malaysians dislike the United States for various reasons, some of which might have been over-simplistic. But you still cannot deny that the US is a mature liberal First World democracy.

In the current presidential nomination race, all the candidates are given a level playing field by the print and electronic media. There, for the media to be impartial does not mean that the newspapers or the TV stations cannot take a political stand and endorse one of the candidates. But it does mean that all the candidates are given equal space and time to elaborate on their platform.

We have seen how, in numerous national and global TV debates, the candidates from the same party, or from different parties for that matter, are grilled by very knowledgeable, critical, though polite, journalists without mercy. Then again, these candidates are given equal treatment by the moderators to make their political assaults on their opponents, and to defend themselves against allegations of all sorts.

There in the US, the presidential candidates from both parties have to raise tens of millions of American Dollars to buy ad time on TV and radio for their campaign messages. Here in Malaysia, we see the ruling parties enjoying free publicity from both the private and public media!

Many elements of the government administrative machinery also serve the ruling parties during election time. For instance, the Special Branch of the police force and the Information Department collect intelligence on the ground regarding voter support for the ruling parties in all constituencies on a daily basis. And they brief the party leaders constantly for them to adjust their election strategy.

In short, the ruling BN coalition behaves as if they are still the government of the day, when in fact, by theory and by convention, the government of the day should have ceased to exist after the parliament was dissolved. By the principle of fair play and ethical imperative, the cabinet should resign upon the dissolution of parliament, and a care-taker government should have been in place during the period between the dissolution of parliament and the day after polling when the election result would have revealed a clear winner to form the next government.

Kit Siang’s suit on principle

It is upon this principle that Lim Kit Siang had earlier on filed a suit in court against the Election Commission seeking a court order for the setting up of a caretaker government after the dissolution of parliament.

As the name would suggest, a caretaker government in a parliamentary democracy is literally a caretaker to fill in the vacuum when the elected government has ended its term of office, and has to go back to the people to seek a fresh mandate.

A caretaker government rules temporarily, performing the rudimentary functions of the state, such as maintaining law and order, the day-to-day running of the administration, and above all, holding an election that is both free and fair.

In Australia and New Zealand, the caretaker government makes particular effort to ensure that the outgoing ruling party will not enjoy undue advantage, such as organising government functions and using public assets for the purpose furthering their interest in the general election.

(Caretaker governments may also be put in place when the government in a democracy is defeated in a motion of no confidence, and a fresh election is immediately pending.)

Strictly speaking then, a caretaker government is one of the parliamentary innovations especially in the British Commonwealth. Its principal task is to ensure that during a general election, the ruling party’s advantage of incumbency must not include their previous hold on government machinery and public resources.

Naturally, the caretaker government as well as the outgoing prime minister and his entire outgoing cabinet cannot be allowed to make policy decisions and significant appointments that will commit the incoming government, or enter into financial transactions and undertakings for which they have no mandate.

In the recent past, caretaker governments have been instituted in Italy, Australia, New Zealand, Palestine, Pakistan, and even in Iraq. But the most interesting case has to be Bangladesh. In that poor unfortunate country, the first caretaker government was introduced in 1990, when three party alliances jointly made a demand for it. In 2006, the system was activated for the fourth time. There, the caretaker government has always been an advisory council headed by the Chief Judge, who ruled the country from 3 months to a year while the parties fought it out at the poll.

Lim Kit Siang’s case will be heard in court on March, and by that time, the court’s decision will almost be merely academic. By that time, polling would be a mere 3 days away, and even if the court grants the decision Kit Siang desires, the purpose of setting up a caretaker government in running a fair and free election would have been defeated.

Still, the court decision on March is still interesting. A favourable decision for Kit Siang would set a precedent in Malaysia with monumental ramifications for the future. Unfortunately, with the present moribund state of the judiciary following the work of the Royal Commission on the Lingam tape, courageous judicial activism is unlikely.

After all, the Malaysian Federal Constitution is silent on the matter of establishing a caretaker government during general elections. The only constitutional instrument is for the outgoing prime minister to advise the King on such a caretaker government together with a list of candidates to constitute the caretaker government.

One cannot foresee how Pak Lah or any future Umno president making such a bold move, without losing his grip on the party. The Umno ideology is clear. They never believe in playing on a level playing field. The idea of equality and fair play is alien to their reason to be. In their subconscious mind, they believe they have a divine right to rule this Tanah Air Melayu. As far as they are concerned, Umno is equated with the State of Malaysia. This is pretty much in line with all authoritarian state.

When the Umno premise is more or less universally accepted by Malaysians either enthusiastically or under protest, the general election has sunk to the level of electing longkang MPs, as candidates vie among themselves to be the ones most diligent at looking at pot holes, writing petitions, inspecting blocked drains and broken toilets.

Whatever the slogan says about making Malaysia into a First World nation by 2020, the sorry state of our democracy shows that our politicians and their constituents are still stuck in the quagmire of their Third World mentality in 2008.

The idea of a caretaker government is a mere mirage on the distant horizon.

Ahmad Fitri Yusof (AKTA)

Competitive election under democratic principle requires a level playing field between political players. All political parties must be deemed equal and on the same footing during the electoral process.

Leaders of the ruling party are considered to have given up executive authority, once Parliament is dissolved. Even if they retain the post, they do not have the same authority.

And, as members of a caretaker government, they must exercise their power cautiously with due process of law.

Without periodic elections, Malaysian political system would be quite similar to a one-party system, where the ruling party has absolute power over state affairs, as in China (Communist Party of China), Cuba (Communist Party of Cuba), North Korea (Korean Workers’ Party) and Syria (Baath Party). Sometime such single-party states also conduct elections merely to camouflage their authoritarian rule, as happen in Iraq during the Baath Party rule (1954-2003).

In Malaysia, a precise term to explain the political system would be ‘soft authoritarianism’ or ‘dominant party system’. This is because the opposition is not given adequate democratic space to explain policies and opinions.

Over the last 50 years, the government has introduced various draconian laws to restrict the freedoms of expression, association and assembly. It has also used various mechanisms such as gerrymandering, first-past-the-post electoral system, media control and detention without trial to limit opposition liberty.

There are at least three reasons why we need responsible caretaker government with limited powers:
• With the dissolution of Parliament, the Executive cannot be held accountable for its decisions in the normal manner.
• Every general election carries the possibility of a change of government.
• All contesting parties should enjoy equal access to public property and the media, as well as equal treatment by the electoral management body.

Rules for caretaker

The position of public service is unchanged by the dissolution of the Parliament, as the position of civil servants does not rely on the existence of Parliment or political appointees. As such, during the caretaker period, ordinary business of government continues.

The position of the prime minister and the cabinet is different. During the caretaker period, they are not allowed to make major policy decisions that are likely to commit an incoming government; make significant appointments; or enter into major contracts or undertakings.

Leaders of government and ruling parties must avoid attending official functions that give an unfair political advantage. The ruling party and its candidates cannot use or organise government functions such as distribution of scholarships to get political advantage; or use government premises as operation centres, or public assets such as canopies and tents.

If the ruling party is allowed to rent stadiums, schools, multipurpose halls or other public premises for party operations or campaign activities, then opposition parties should have an equal right to use these facilities.

Furthermore, the ruling party and its leaders cannot:
• direct civil servants to work for their political agenda or to attend political gatherings, even if these are held under the banner of government agencies;
• use government machinery, including personnel and equipment of the information department, for partisan political propaganda; or intelligent agencies (such as Military Intelligent Unit, National Security Division or Special Branch to gain information about rival political parties and trends of voters or other information of political interest;
• use the executive positions to attract political sponsors for electoral expenditures; or
• use government funds for political advertisements during the campaign period – this includes any advertisement in flyers, billboards, posters, banners and balloons or special column or space in newspapers, magazines, television, radio or Internet.

The government and its agencies and government-linked companies must not declare a special bonus for government servants or extraordinarily high dividends to shareholders of public funds like Tabung Haji or Lembaga Tabung Angkatan Tentera during an electoral campaign.

In addition, the government-owned media must comply with these guidelines:
• Exercise fair reporting by observing universal journalism ethics and standards based on the principles of truthfulness, accuracy and impartiality;
• No partisan political propaganda except in specified space which is given equally to all contesting parties; and
• No political censorship, unfair government advantage and unequal access during the campaign period (based on UN Centre for Human Rights in ‘Handbook on Human Rights and Election’).

Fair media access implies not only equality of time and space allotted, but also attention to the hour of broadcasting (i.e. prime-time versus late broadcasting).

However, it appears that almost all these guidelines have been breached by Barisan Nasional leaders. So why do they still claim to the world that they conduct free and fair elections?

AHMAD FITRI YUSOF is research fellow with Akademi Kajian Kota, a think-tank dedicated to social, economic and political issues in Malaysia.

(http://akta.wordpress.com)

The supreme sovereign is the ceremonial head of state but executive power is concentrated in the office of the prime minister, the head of government. Until his retirement on 31 October 2003, Prime Minister Datuk Seri Mahathir Mohammad had retained control of the government since his initial appointment in July 1981. He was reappointed for his fifth term in November 1999 following the electoral victory of the National Front alliance, the country’s hegemonic political organization which is led by Mahathir’s United Malays National Organization (UMNO).

Deputy Prime Minister Abdullah Ahmad Badawi was sworn in on 31 October 2003 as Malaysia’s fifth Prime Minister. The government has been criticized for undermining judicial independence and limiting freedom of assembly, association, speech, and the press. The control of government by the ethnic Malay majority, represented by UMNO, and the limitations imposed through its hegemonic control over the government have given the National Front (BN), which is more an association of UMNO-controlled ethnic parties, enormous advantages over opposition parties. During the most recent UMNO elections, members were not allowed to run against the two leaders, in the interests of “party unity.” Furthermore, there are signs that the current prime minister may be grooming a successor.

Opposition parties actively contest elections but face significant obstacles in competing with the long-entrenched ruling coalition.

Executive Constraints: Moderate Limitations (4)

Constitutionally, the prime minister is appointed by the supreme sovereign and is responsible to the parliament. In practice, however, there is no working system of checks and balances that would effectively constrain the prime minister’s authority.

Prime Minister Mahathir firmly controlled every aspect of government from foreign policy to economic planning to the design of the national car, the Proton. Although political opposition to Mahathir’s leadership had strengthened since 1998 when Malaysia fell into its first recession in many years, elections in March 2004 reversed this trend. Mahathir’s successor, Prime Minister Datuk Abdullah Ahmad Badawi, guided the UMNO-led National Front (BN) to a landslide victory, reducing the opposition’s representation in parliament to less than 10%.

Opposition parties criticized the Election Commission’s handling of the elections and asked the King to nullify the results. The government had previously taken significant action to weaken the opposition. States under control of opposition parties had their funds cut and parliamentary debate on such funding was eliminated. A few prominent politicians were prosecuted in public trials which diminished the independence of the judiciary.

The constitution provides for an independent judiciary; however, government action, constitutional amendments, legislation, and other factors undermine judicial independence and strengthen executive influence over the judiciary. However, the judiciary showed signs of a resurgence in independence in 2001 following the appointment of a new chief justice.

Political Participation: Factional/Restricted Competition (6)

The hegemonic National Front has dominated the country’s politics since 1970. The front comprises 14 political parties that represent Malaysia’s major ethnic groups and is controlled by the ethnic-Malay UMNO.

Over time, this coalition has used central authority to restrict access to resources and mobilization opportunities for dissident groups, such as Islamic fundamentalists represented by the Pan-Malaysian Islamic Party (PAS), pro-Singapore Chinese represented by the Democratic Action Party (DAP), and those criticizing the government for oppressive and corrupt policies. The government often resorts to politically motivated, selective prosecution to fight against its opponents, as conspicuously shown by the court case against former Deputy Prime Minister Anwar Ibrahim in 1999.

The government also curbs citizens’ basic liberties. Protesters against trials of opposition leaders were repeatedly dispersed by riot police using water cannons and tear gas in 2000. Police raided newsstands that sold opposition newspapers; several opposition papers were refused renewal of publication permits.

An alleged insurrection in July 2000 by an Islamic group called Al-Ma’unah gave the government reason to clamp down on all “Muslim cults,” including the PAS (Malaysia’s strongest opposition party) which the government claims is linked to the group. In October 2000, members of the Muslim opposition party were barred from making speeches in mosques.

In addition, the country is still under the Internal Security Act, which allows the government to detain people without trial, and disguise witness identities and admit hearsay evidence during trial. In April 2002, a controversial bill amending the election law passed which prohibited any legal challenge to the voter rolls; opposition parties contend that thousands of dead people are currently listed on the rolls.

Political Rights Score: 4
Civil Liberties Score: 4
Status: Partly Free

Trend Arrow

Malaysia received a downward trend arrow due to a decline in religious freedom and restrictions on press coverage and public discussion of issues relating to race or religion.

Overview

Prime Minister Abdullah Ahmad Badawi’s anticorruption and police-reform efforts largely stalled in 2006, and a cabinet reshuffle in February brought few concrete changes. The political scene was dominated by the rise of sharp divisions within the United Malays National Organization (UNMO) and, specifically, a series of harsh attacks by former prime minister Mahathir Mohamed on Prime Minister Abdullah. Meanwhile, Anwar Ibrahim, a former deputy prime minister whom Mahathir had controversially deposed, returned to Malaysia and suggested that he might run for public office. Religious freedom declined significantly with a series of court rulings that denied certain religious and legal rights for non-Muslims, sparking a national debate on the role of Islam in Malaysia and constitutional guarantees of religious freedom. The government took action to suppress related civil society activism, public discussion, and press coverage, citing the need to prevent national unrest. Heightened racial and religious divisions were compounded in September by the release of a think-tank study that challenged the calculations used to justify the country’s continued affirmative-action policies, which lay at the heart of the government’s New Economic Policy, renewed in December 2005, and the Ninth Malaysia Plan, a development program launched by Abdullah in March 2006. The year’s developments came to a head at the UMNO national party congress in November, when several ministers issued racist comments and threats in defense of Malay supremacy and Islam, making clear that all affirmative-action quotas would be maintained.

Malaysia gained independence from Britain in 1957 and, in 1963, merged with the British colonies of Sarawak, Sabah, and Singapore (Singapore left in 1965). The ruling Barisan Nasional (National Front, or BN) coalition (known as the Alliance before 1969) has won at least a two-thirds majority in all 11 general elections since 1957. The BN consists of 14 mainly ethnic-based parties, dominated by the conservative, Malay-based United Malays National Organization (UMNO).

Racial tensions between the country’s indigenous Malay majority and Chinese and Indian minorities have played a central role in Malaysian politics and economics since the country’s founding and were especially prominent through the early 1970s. Independence was premised on a social contract between these groups, enshrined in the constitution, that grants Malaysian citizenship to the non-Malay population in exchange for special rights and privileges, especially in education and economics, for all bumiputera (Malays and other indigenous peoples). Tensions culminated in the Race Riots of 1969, in which thousands of Chinese homes and businesses were destroyed and more than 180 people were killed. In response, the government declared an 18-month state of emergency and tightened restrictions on free speech, assembly, and political organizations.

Modern Malaysia has been shaped by Mahathir Mohamed, one of the key architects of efforts to shift economic power from the Chinese to the Malays, first as education minister and then as Malaysia’s prime minister from 1981 to 2003. Through his “Look East” policy for economic development, he transformed Malaysia from a sleepy backwater, dependent on tin, rubber, and palm-oil exports, into a hub for multinational corporations and local firms exporting high-tech goods. At the same time, he stunted democratic institutions, weakened the rule of law by curtailing the press and political opponents, and fostered allegations of cronyism with his state-led industrial development. Mahathir was a polarizing figure who criticized Malaysia’s conservative Muslim leaders for failing to promote a more modern brand of Islam and, at the same time, pushed through a gradual Islamization of UMNO as part of an effort to co-opt Islamist opposition forces, which had begun gaining ground with the dakwah movement of the 1970s. Mahathir’s anti-Western and anti-Semitic views rankled outsiders as well.

In October 2003, Mahathir stepped down after more than two decades in office, paving the way for the political ascent of his deputy, Abdullah Ahmad Badawi, who sought early on to establish his own leadership style. Many countries and international organizations with hopes of reform regarded Abdullah’s appointment as prime minister with enthusiasm.

The BN, led by Abdullah, won 198 of the 219 seats in the lower house of Parliament (Parlimen) in the March 2004 legislative elections, which were generally regarded as transparent. However, the three main opposition parties—the Democratic Action Party (DAP), the Islamic Party of Malaysia (PAS), and the People’s Justice Party (PKR)—challenged the results on the grounds that the BN had engaged in vote rigging and other irregularities. Most specific challenges were rejected in court or withdrawn, although allegations of vote buying and problems with the electoral roll were substantiated.

Despite a strong popular mandate in 2004 and signs of renewed momentum on police reform and anticorruption efforts in 2005, little concrete reform has actually been achieved since Abdullah took office. In 2006, the prime minister’s efforts were undermined by police resistance and his need to maintain the backing of his own increasingly fractious party. A long-overdue February 2006 cabinet reshuffle saw few changes largely for this reason; the large cabinet was not reduced in size, and the most controversial ministers retained their positions. In an effort to cut government subsidies, fuel prices were significantly increased in late February, sparking tremendous public resistance and a series of protests in March.

Escalating divisions within UMNO rocked the political scene for much of the year. Motivated at least in part by his own waning influence in the party, Mahathir harshly criticized Abdullah and his policies following the cancellation of plans to build a bridge between Malaysia and Singapore in April. By late August, Mahathir’s attacks had developed into a wide-ranging campaign to discredit and depose Abdullah. In a series of dramatic statements, Mahathir accused Abdullah of undermining his legacy and failing to live up to campaign promises. While Abdullah’s lackluster responses added to perceptions that he was ineffective, Mahathir’s failure to curtail his criticism in the interest of preserving party strength and unity discredited him among many UMNO members by year’s end. The UMNO division in Kubang Pasu, a constituency Mahathir had represented for decades, rejected him as their delegate to the national party congress in the fall (although the nomination process was called into question for irregularities). After Mahathir had a heart attack in November, the conflict ebbed. During the UMNO congress later that month party members reaffirmed their support for Abdullah.

Party divisions earlier in the fall led the UMNO Supreme Council to postpone internal party elections (scheduled for 2007) until after the next general elections required to be held before April 2009. Observers speculated that Abdullah might call early general elections, however, in light of his need for a renewed public mandate after the pummeling of his policies and leadership capacity this year.

Malaysian politics were further complicated that year by the return to Malaysia of Anwar Ibrahim, a former deputy prime minister deposed by Mahathir in 1999 on questionable charges of sodomy and corruption. Anwar began playing an active role in the opposition PKR’s rejuvenation and suggested that he might run for public office, although his corruption conviction prohibited him from doing so until 2008, meaning he would not be able to participate if early elections were called.

By far the most important issue in the country in 2006 was what has generally been termed the “Islamization” of Malaysia, a phenomenon encompassing a crystallized racial divide and a sharp downturn in religious tolerance. A series of court cases raised concerns among non-Muslim minorities regarding their religious and legal rights. The ongoing case of Lina Joy, a former Muslim convert fighting to be recognized as a Christian by the state, emerged as a test of the state of religious freedom in the country. Wary of the sensitivity of the issues of race and religion, the government suppressed public and political discussion of religious rights along with related press coverage. UMNO’s refusal to entertain discussion of minority rights culminated at the party congress in November, where ministers demonstrated unrestrained racism and Islamic zeal, warning Chinese and Indian minorities (represented by UMNO’s BN partners) against continued questioning of the special status of Malays and Islam.

Racial and religious tensions were compounded by developments on the economic front. The New Economic Policy (NEP) and its affirmative-action quotas favoring the Malay population were renewed at the urging of UMNO Youth, the party’s youth wing, in December 2005. In April 2006, Abdullah launched the Ninth Malaysia Plan (9MP), the latest in a series of short-term plans to fully develop the country by the year 2020, with an emphasis on nurturing small and medium-sized enterprises (SMEs) and meeting the 30 percent target for bumiputera corporate equity share, a primary justification for the NEP’s continued affirmative-action policies. In September, the Center for Public Policy Studies (CPIS) affilitated with the Asian Strategy and Leadership Institute (ASLI), a Kuala Lumpur–based think tank, published a study arguing that bumiputera owned 45 percent of corporate equity, not 18.9 percent as stated in the 9MP, sparking tremendous national debate over the policy and assessment of ethnic wealth. UMNO ministers came out in strong support of the calculations of the Economic Policy Unit (EPU), the government agency behind the 9MP, and the ASLI was forced to apologize and withdraw its report. UMNO ministers insisted that the affirmative-action entitlements would be upheld. Fearing the incitement of racial tensions, Deputy Prime Minister Najib Razak ordered an end to the discussion altogether. Opposition leaders, including Anwar as well as a growing number of Malays, have called for the abolishment of racial preferences in recent years, arguing that they fostered Malay dependence while not really improving their standing.

Political Rights and Civil Liberties

Malaysia is not an electoral democracy. The country has a parliamentary government within a federal system. The party that wins a plurality of seats in legislative elections names its leader prime minister. Executive power is vested in the prime minister and cabinet. Former prime minister Mahathir’s 22-year tenure, which ended in 2003, was marked by a steady concentration of power in the premiership.

The Malaysian Parliament is divided into two houses. The nonelected members of the upper house are comprised of political appointees. The paramount ruler is the titular head of government and is elected by fellow hereditary rulers or sultans in nine of Malaysia’s states. Sultan Mizan Zainal Abidin al-Marhum Sultan Mahmud al-Muktafi Billah Shah was elected the new paramount ruler in December 2006. The lower house, with 219 seats, is elected every five years.

In general, powers of parliamentary oversight have increased under Prime Minister Abdullah. The Parliament’s role as a deliberative body, however, has deteriorated since the 1970s as opinions expressed by opposition parties tend not to be given serious consideration. Malaysia’s ruling BN is a coalition of roughly 15 parties, most with an ethnic or regional foundation, including the dominant UMNO as well as the Malaysian Chinese Association (MCA) and the Malaysian Indian Congress (MIC). The means by which the new Family Law was passed in December 2005 (although subsequently not implemented) reflects UMNO’s continued strength in Parliament; 16 female BN senators opposed to the law were forced to vote for it against their will.

The same month, pressure from Abdullah forced non-Muslim Cabinet Ministers to withdraw a memorandum aimed at upholding the principles of religious freedoms as articulated by Article 11 of the federal constitution.

Prominent opposition parties include the DAP, PAS, and PKR. They face serious obstacles, such as unequal access to the media and restrictions on campaigning and freedom of assembly, that leave them unable to compete on equal terms with the BN. The BN currently controls 12 out of 13 state parliaments; state elections in Sarawak and by-elections in 2006 brought both notable gains and losses. UMNO won an additional seat in Kelantan, the only state in Malaysia controlled by an opposition party, PAS, leaving PAS with a majority of just one seat. Opposition numbers increased from one to nine in the Sarawak state assembly, sending an alarming blow to the BN.

The political balance in this region has been maintained by the long-serving BN chief minister on his way out, with no clear successor. The future prospects of the opposition in general could hinge on the ability of Anwar Ibrahim, the leading opposition political figure, to unite a diverse group of parties, including the DAP and PAS, with different ideological foundations.

Malaysia was ranked 44 out of 163 countries surveyed in Transparency International’s 2006 Corruption Perceptions Index. Corruption in the country is mostly limited to elite circles. There is marked graft in the police force, and political corruption, particularly bribery and cronyism, is common in the ruling BN coalition. Abdullah followed through to some extent on his anticorruption campaign pledges by launching a National Institute for Ethics and a National Integrity Plan in 2004. Progress has been slow in subsequent years, however. Federal Territories Minister Mohamed Isa Abdul Samad finally resigned in October 2005 after being found guilty of buying votes in UMNO’s party elections in 2004. The police inspectorate general’s refusal to establish an independent police complaints and misconduct board in March 2006, coupled with resistance from several BN members of parliament, undermined progress on reducing police corruption. A long-anticipated cabinet reshuffle, finally implemented in February 2006, retained many of Mahathir’s ministers, including the controversial minister of international trade and industry, Rafidah Aziz, who was tainted in 2005 by favoritism in allocation of state contracts and licenses. While 2006 saw the disclosure of a number of corruption scandals under the Mahathir administration, many of these did not receive decisive responses. Abdullah pointed to the large increase in the number of arrests and prosecutions for corruption since he entered office and pledged that anticorruption efforts would be strengthened under the Ninth Malaysia Plan, yet his record in 2006 on corruption did little to inspire confidence.

The constitution provides for freedom of expression, but the government restricts this right, particularly in cases of perceived security concerns. Under the 1984 Printing Presses and Publications Act (PPPA), publications and printers must obtain annual operating permits from the government, causing most print media outlets to practice self-censorship and limit investigative journalism. The law also gives the prime minister—as the minister of internal security—the authority to revoke licenses at any time without judicial review. The PPPA was invoked in early 2006 to indefinitely suspend the Sarawak Tribune and temporarily suspend the Guang Ming Daily for reproducing infamous Danish cartoons of the prophet Muhammad. Abdullah invoked the act in mid-February to prohibit the publication, distribution, or possession of any materials relating to the Danish caricatures. Fearing a selective crackdown after the government’s handling of the cartoon issue, the media self-censored their coverage of major fuel price hike protests in April, some of which were brutally suppressed by the police.

In July 2006, the prime minister banned public discussion of the status of Islam, religious freedom, and interfaith issues, as well as all reporting on the issues of race and religion. The information minister then issued a sharp warning that the government would take action against all media outlets that did not comply. Internet editions of newspapers are not currently required to obtain permits, but some government harassment of online newspapers occurs. The recent debate over Islam and minority rights prompted some government ministers to call for extending the PPPA to cover online media in 2006. While Abdullah pledged to uphold media freedom in November 2006, his administration’s actions that year reflect the extent to which the government attempts to suppress public discussion of divisive and potentially explosive issues through control of the press.

Privately owned television stations have close ties to the BN, illustrating a larger pattern of media manipulation that often takes the form of biased news production, rather than outright censorship. Nevertheless, the government directly censors books and films for profanity and violence, as well as certain political and religious material. In 2006, a number of books on Islam and religion were banned on the grounds that they might “disrupt peace and harmony.” The number of banned books has risen sharply under the Abdullah administration. Television stations censor programming according to government guidelines.

While Abdullah continues to promote Islam Hadhari or “civilizational Islam,” a tolerant and inclusive form of the faith, religious freedom is restricted in Malaysia in practice and declined significantly in 2006. Traditionally, Muslim worship is governed by Sharia (Islamic law), and practicing a version of Islam other than Sunni Islam is prohibited. Muslim children are required to receive religious education that conforms to a government-approved curriculum, and Muslim civil servants must take Islamic classes taught by government-approved teachers. Proselytizing by other religious groups to Muslims is prohibited, and non-Muslims are not able to build houses of worship as easily as Muslims. The state retains the right to demolish unregistered religious statues and houses of worship. In 2006, a number of nongovernmental organizations (NGOs) condemned a controversial campaign by local councils to demolish Hindu temples, justified by the need to make way for new state development projects. Many of the temples were built prior to national independence but retain large numbers of worshippers.

Religious freedom has recently declined more broadly with a series of court rulings that threatened non-Muslim minorities’ right to self-identify and to practice freely, as guaranteed by Article 11 of the constitution. In December 2005, a religious court ruled that Maniam Moorthy, a former army officer, died a Muslim and thus must be buried according to Islamic rites, while his wife insisted he was a practicing Hindu and had never converted. Non-Muslims were outraged when the High Court invoked Article 121B of the Constitution, a measure introduced during the Mahathir administration stipulating that only Sharia courts can deal with matters related to Islam, and refused to hear the case. Essentially concluding that non-Muslims have no means for redress in religious matters, the Moorthy ruling led nine non-UMNO ministers to file a memorandum in mid-January calling for a repeal of Article 121 and a review of constitutionally guaranteed religious freedoms. Widespread demonstrations by both non-Muslims and Islamic activists followed, prompting Abdullah to pressure the ministers to withdraw the memorandum.
Lina Joy, a Muslim who converted to Christianity in 1998, continues to fight for state recognition of her new religion so that she can marry a Christian man. She has fought her battle for the last five years in civil courts on the basis of Article 11 and argued that, since she renounced her Muslim faith, Sharia courts do not apply to her in marriage, property, and divorce. After a series of civil court decisions against her, which maintained that Malays cannot renounce Islam because the constitution declares Malays to be Muslims, her case was brought before the national Court of Appeals on the grounds that the national registration department, which lists the official religion of all Malaysians on identity cards, cannot force her to contest this matter in the Shariah courts. The case, with the verdict still pending at year’s end, has largely polarized the nation, with many Muslims viewing conversion as apostasy. A number of anti-apostasy campaigns and Islamic defenders groups have emerged in response, and this issue has raised racial tensions. In November, a large mob of Muslims organized outside a church in Ipoh in response to a false report that Muslims were being converted within the church. The government was forced to call on the state’s hardline religious leader or mufti Harussani Zakaria, who was conspicuously absent, to intervene to prevent violence. Still highly politicized, apostasy is predicted to remain a primary issue of contestation in the relationship between Islam and the state.

The government restricts academic freedom to the extent that teachers or students espousing overtly antigovernment views may be subject to disciplinary action under the University and Colleges Act of 1971. In February 2006, five students were accused of distributing leaflets and protesting against campus electoral processes. In July, the Ministry of Higher Education published a historical textbook addressing ethnic relations, which was met with immediate objections by non-Malay NGOs, human rights groups, and politicians. Abdullah quickly had the book withdrawn and rewritten. An effort by the minister of higher education to review the draconian restrictions on students at universities was rebuffed by year’s end.

Freedom of assembly and association are limited on the grounds of maintaining security—particularly with respect to ethnic conflict—and public order. A police permit is required for all public assemblies except for picket lines, and the granting of permits is sometimes politically influenced. The Societies Act of 1996 defines a society as any club, company, partnership, or association of seven or more people (excluding schools, businesses, and trade unions). Societies must be approved and registered by the government, and the government periodically has refused to register organizations or revoked the registration of existing societies, generally for political reasons. Numerous NGOs operate in Malaysia, but some international human rights organizations are not allowed to form Malaysian branches. The activities of Article 11, a coalition of NGOs that advocate for freedom of religion, were inhibited in July 2006 when protesters interrupted their forum, arguing that it was an insult to Islam. Many claimed that the Malaysian police allowed for the interruption. Alarmed by increasing religious and racial tensions, the prime minister ordered an end to all public forums organized to discuss freedom of religion that month. A peaceful protest against the fuel price hike was forcefully broken up by the police in late May.

Most Malaysian workers can join trade unions, but Malaysian law contravenes International Labor Organization (ILO) guidelines by restricting trade unions to representing workers in a single or similar trade, industry, or occupation, thus preventing the formation of broad-based unions. Unions may organize in workplaces and associate with national federations, of which there are currently two. Collective bargaining is widespread in sectors with organized labor. Labor laws restrict strikes by requiring that unions in essential services—the government’s list of such services includes several not deemed essential by the ILO—give advance notice of planned strikes and by imposing conditions so stringent that strikes are effectively impossible.

Judicial independence has been significantly compromised over the past two decades by the increasing influence of the executive. Many instances of arbitrary or politically motivated verdicts, selective prosecution, and preferential treatment of lawyers and litigants have occurred. The most prominent of these was the conviction of Anwar Ibrahim in 1999 and 2000 for corruption and sodomy. Anwar was arrested in 1998, beaten while in custody, held under the Internal Security Act (ISA), and sentenced in two trials to consecutive prison terms of six and nine years. The arrest was widely regarded as having been politically motivated, as Anwar, then the deputy prime minister, had political differences with then–prime minister Mahathir. Both trials, as well as Anwar’s appeals, exhibited serious violations of due process.

In a landmark step in September 2004, which Human Rights Watch considered a signal of “a renewed commitment to judicial independence,” the High Court overturned Anwar’s sodomy conviction and released him from prison, although the corruption charge was upheld. In another significant development in September 2006, Lord President Salleh Abas, who had been sacked by Mahathir as the country’s top judge along with five other senior judges in the “1988 scandal,” led the call for an investigation into Mahathir’s deliberate efforts to prohibit the courts from interfering in a major political battle 18 years ago. The highly politicized case against Abdul Razik Baginda, a prominent political analyst close to the deputy prime minister, will draw attention to the workings of the judiciary. Abdul was charged with abetting the murder of Altantuya Shaaribuu, a Mongolian who was shot and blown up in November 2006.

Malaysia’s secular legal system is based on English common law. However, Muslims are subject to Sharia, the interpretation of which varies from state to state, and Article 121 stipulates that all matters related to Islam be dealt with in Sharia courts.

Law enforcement is the responsibility of the Royal Malaysia Police, under the jurisdiction of the Home Ministry. There is no constitutional provision specifically banning torture, and the police have been known to torture prisoners and use excessive force in conducting searches. Leaked video footage of a naked woman forced by police to perform squats in June 2005 caused public outrage that led an independent panel to issue a report in January 2006, recommending that this fairly routine technique be stopped. Separately, a frank and critical report issued by the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in April 2005, hailed by human rights groups worldwide, was undermined in 2006 when the minister of police’s refusal to form the recommended investigatory commission was supported by several UMNO ministers, essentially bringing the effort at police reform to a halt.

Individuals may be arrested without a warrant for some offenses, and they may be held for 24 hours without being charged. The ISA, in force since 1960, gives the police sweeping powers to hold any person acting “in a manner prejudicial to the security of Malaysia” for up to 60 days (extendable to two years). It has been used in recent years to jail mainstream politicians, alleged Islamist militants, trade unionists, suspected Communist activists, ordinary criminal suspects, and members of “deviant” Muslim sects, among others. Human Rights Watch continues to decry the denial of due process and systematic abuse of detainees held under the ISA at the Kamunting Detention Center, where more than 700 prisoners are reportedly being held indefinitely without trial or charge. The government has initiated some measures to reform the state’s internal security apparatus.

Although the constitution provides for equal treatment of all citizens, the renewal of the NEP means that Malaysia continues to maintain an official affirmative-action policy intended to boost the economic status of ethnic Malays and other indigenous people, known collectively as the bumiputera. Bumiputera receive preferential treatment in many areas, including property ownership, higher education, civil service jobs, and business affairs. Findings published in September 2006 challenging the calculations used to justify the ongoing affirmative-action quotas generated national debate about continuing the policy, but UMNO ministers made it clear that no changes would be made in the near term.

Foreign domestic workers are not covered by the Workmen’s Compensation Act and are thus subject to economic exploitation and abuse by their employers. Malaysians officially employ about 240,000 domestic workers, 90 percent of whom are Indonesian, representing roughly 20 percent of the national workforce. There are an estimated two million illegal workers in Malaysia. In part because these people are often blamed for crime, the government initiated a series of programs to expel migrant workers in 2004—although it offered an amnesty for Indonesian workers—and began an immigration crackdown in March 2006. If arrested and found guilty, the workers can be caned and detained indefinitely pending deportation. Malaysia remains on the U.S. Trafficking Report watchlist for treatment of foreign labor and failure to protect the rights of trafficking victims within its borders.

Despite government initiatives and continued gains, women are still underrepresented in politics, the professions, and the civil service. Violence against women remains a serious problem. Muslim women, whose grievances on family matters are heard in Sharia courts, receive unequal treatment because Islamic law favors men in matters such as inheritance and divorce, and does not give equal weight to the testimony of women. A new family law was passed by the Parliament in December 2005 that would further inhibit women’s rights by eliminating the requirement that men prove their ability to financially provide for multiple wives prior to engaging in polygamy and giving men the right to a spouse’s assets after divorce. The government has delayed implementation of the law, however, in light of widespread objections.

http://www.freedomhouse.org/template.cfm?page=22&year=2007&country=7223

The Election Commission – a body tasked with the impartial management of free and fair general elections – has come under intense fire for a number of poll irregularities in last 11th general election. Now, there are more questions it has to answer.

Malaysiakini has been alerted by a number of readers to the high number of unreturned – or ‘missing’ – ballot papers as well as other discrepancies in certain constituencies.

According to them, there is a 10,000-large discrepancy in the number of ballot papers issued to voters for the Kuala Terengganu parliamentary seat.

A check with the Election Commission’s (EC) website today showed that the total number of ballot papers issued for the four state seats under the Kuala Terengganu parliamentary constituency was 60,948.

Polling procedures require that every voter be issued their state ballot papers the same time as their parliamentary ballots. This would mean that all ballots issued for the state seats should tally with the number of ballots issued for the parliamentary constituency.

However, EC figures show that they issued a total of 71,322 ballots for the Kuala Terengganu parliamentary seat, exceeding the total state ballots by 10,374.

The statistics showed that ballots issued for Wakaf Mempelam (15,399), Bandar (15,031), Ladang (13,190), and Batu Buruk (17,328) – all state constituencies under Kuala Terengganu – only add up to 60,948 ballots.

Why the 10,000-odd difference in the number of ballot papers issued for the parliamentary and state seats?

Three other seats, Setiu (Terengganu), Kemahang and Bachok (Kelantan), also showed similar discrepancies ranging from 1,444 to 4,843 votes.

BN’s Razali Ismail won the Kuala Terengganu seat by a 1,933 majority against PAS’ Syed Azman Syed Ahmad Nawawi – the contest recorded an astounding voter turnout of 98.7 percent.

In 1999, the voter turnout for this seat was only 76.5 percent, out of 64,435 total registered voters for the seat.

BN also won the Bandar and Ladang state seats, while PAS took Wakaf Mempelam and Batu Buruk. All the state seats saw high voter turnouts ranging from 81.52 to 85.92 percent.

Syed Azman, when contacted, told malaysiakini that his party has filed a formal complaint with the EC over the discrepancy in the number of ballots for his seat.

“We are in the process of waiting for their answer,” said the former Kuala Terengganu MP, declining to comment further.

Glaring example

Also surprising is the fact that EC recorded an astonishing 10,254 ‘unreturned’ ballots for the Kuala Terengganu parliament seat. Unreturned ballots for the constituency’s state seats only amounted to 124.

Unreturned ballots are defined as ballot papers which were issued to voters at polling stations but for some reason or the other never made it to the ballot boxes.

This would mean that for Kuala Terengganu parliamentary seat, one out of every seven ballot papers has gone missing.

The statistics oddly suggest that most of these 10,254 voters managed to drop their votes into the state ballot boxes while withholding their parliamentary ballot papers. This despite the presence of EC officials next to the ballot boxes.

The discrepancy between the number of ballots issued against the number of ballots received could not be more glaring than for the parliamentary seat of Kuala Selangor.

EC figures for the constituency show that almost one out of every two voters collected their ballots at their respective polling centres but failed drop their votes into the ballot boxes.

The election authorities had issued 31,231 ballot papers for Kuala Selangor parliament seat but recorded receiving only 13,271 votes. A total of 17, 960 ballots, or 57.5 percent, were recorded as unreturned.

The same occurred for the state seat of Pangkor – which comes under the Lumut parliamentary constituency in Perak – where one out of every third voter did not drop their votes into the ballot boxes. A total of 5,108 ballots were recorded as unreturned out of the 6,712 issued.

Why is there such a high number of ballots papers unaccounted for?

The discrepancies in the EC’s figures for total number of ballots issued for the state and parliamentary seats and the number of unreturned votes highlights claims by opposition political parties that the 2004 general election was conducted in a ‘dubious manner.’

Following its unexpected poor performance at the elections, PAS has questioned the sudden jump in voter turnout in Terengganu, and the absence of registered voters from the electoral roll.

The party on Sunday was routed by the ruling Barisan Nasional coalition, losing Terengganu and coming close to being defeated in neighbouring Kelantan as well.

Yesterday, it moved to reject poll results, calling instead for a royal commission to probe into complaints of poll irregularities. Fellow opposition party, Keadilan, which also suffered big losses at the polls, followed suit.

Chaos on polling day

Chaos erupted in various constituencies on polling day when voters alleged that their names were not on the electoral roll, despite having voted in that constituency in the past.

Nowhere was this more stark than in Gombak, Selangor, where polling agents alleged that “hundreds” of names were missing from the roll, and EC officers nowhere to be found.

Scores of others were caught out when they found that while their names were on the roll, they still could not vote as the EC failed to assign them to voting channels, a procedure ensuring voters can obtain a ballot at their polling stations.

Some also alleged that they had been transferred, without their knowledge, to other constituencies and even other states. Malaysiakini managed to independently verify some of these complaints.

And while both BN and the opposition parties have criticised the conduct of the 2004 general election, PAS, Keadilan and DAP had gone one step further in calling for the resignation of EC chief Abdul Rashid Abdul Rahman, as a first step in the direction of correcting the electoral fiasco.

Yesterday, Abdul Rashid conceded to the electoral foul ups and himself called for an independent probe, but said he would not step down unless the problems can be traced back to his incompetence.

ADDENDUM 3: Extract of FAC News report of 3 April 2004

In another development, Azmin Ali, keADILan’s Director of Elections and a party Vice President, said the Election Commission (EC) documents showed that his dead father had turned up to cast his vote.

“Many voters who had died came to vote, including my late father. Sad, I was unable to meet him,” quipped Azmin.

ADDENDUM 4: Extract of FAC News report of 3 April 2004

A Malaysian lady married to a foreigner, Hajjah Noor Ibrahim, who has been living outside the country all these years, said she was surprised to find her name registered as a voter. She said, out of curiosity, she keyed in her identity card number, 510707-05-5292, into the EC website search section and found that she was registered as a voter.

“All I know is I have never registered as a voter and have never voted in my life,” said Hajjah Noor. “I have been living outside Malaysia all these years.”

“I then went to the Malaysian Embassy in my country to enquire how to vote,” Hajjah Noor went on to say.

“I thought, since I am now a registered voter, I might as well vote to prevent someone else voting in my place.”

“To my surprise, however, I was told by the embassy official that they have no postal voting system for Malaysians living in my country. They told me if I wanted to vote I would have to fly back to Malaysia to do so.”

“I cannot understand why I cannot vote through the postal voting system when I live halfway around the world whereas police officers and army personnel who live within walking distance from the polling centres are obligated to vote through the postal voting system.”

ADDENDUM 5: Extract of FAC News report of 3 April 2004

Then there were cases where women voted using the identity cards of men. In one such case in Putrajaya, an opposition election worker raised a protest and asked that the EC establish the voter was merely a cross-dresser or transvestite and not a real woman. However, no one dared volunteer to undertake the task of doing the fondling so the she-man was allowed to vote on the basis that he probably did have a male organ between his legs.

(based on Malaysiakini.com’s report of 25 March 2004)

Massive gaps in EC’s ballot figures
By Yoon Szu-Mae and Cindy Choo
8:02pm Thu, Mar 25th, 2004

Abdul Aziz Bari | Feb 14, 08

The legal basis of a caretaker government has to be argued in light of the nature of a government in a parliamentary system like ours. Of course, given its role and function, there is room to argue that a caretaker government is not something that is absolutely necessary. For one thing it is just for a short period and that it merely carries out routine administration.

This is plausible given that the civil service – which includes the armed forces and the police force – are still around. Indeed, the system which includes the judiciary – except the government of the day – still exists and is operational. On top of that, the ultimate guardian of the constitution – the Yang di Pertuan Agong – is still there symbolising the nation.

Be that as it may, under our system, one under the Westminster type, the government of the day is not directly elected by the people. Unlike under the American system whereby the executive is directly put in office by the electorate, the cabinet in the British system is appointed by the head of state from among members of the legislature.

Of course, one has to bear in mind that although the appointment is made by the Yang di Pertuan Agong acting under his discretion, he has to follow certain established rules. Indeed, these rules have been incorporated into the constitution; namely Article 43(2)(a) of the federal constitution.

In any case as politicians and political parties would not want to allow a hung parliament which would put the King in a position to exercise real discretionary power and they have devised a strategy which reduces the power of the King to appoint the government – termed Article .40(2)(a) of the federal constitution.

Under this article, the appointment of the prime minister is a a matter of pure formality with no real discretion being exercised. In our case, the ruling coalition has always made it clear who their leader and prime minister was and the Yang di Pertuan Agong has just been there as a mere figure handing out appointment letter to successive prime ministers.

Under the presence composition of the Dewan Rakyat, the King must appoint someone who commands the support of the majority of the members of that lower house. Under the present provision, the person must at least have the backing of 112 members of Parliament.

Like in other Westminster constitutions, the federal constitution makes it clear that should the prime minister – who is also the lynchpin of the cabinet – lose support he must resign. Normally, this takes place through a vote of no confidence. The federal constitution makes this clear in Article 43(4).

As the government stands on the strength of its support in Parliament, it is only logical that once it ceases to command a majority support it has no grounds to continue and must resign

Having seen the relationship between the government and parliament in Westminster, one now can understand why the government in a parliamentary democracy is termed as ‘responsible government’. This actually underlines the requirement that the government owes its existence to Parliament and needs to be answerable to the legislature. This is indeed what Article 43(3) of the constitution is all about. This provision requires the government of the day – namely the cabinet – to be responsible to Parliament.

Here lies the basis for question-time in Parliament whereby the prime minister and the cabinet are supposed to explain to Parliament matters pertaining to the government and their policies.

Draconian laws passed

The relationship between government and parliament explains the role and function of caretaker government or perhaps more accurately, its limitations. Since the foundation of the government is the House, it automatically ceases to exist the moment parliament – or more correctly the Dewan Rakyat – is dissolved.

It is certainly illogical for the government to exist and continue when the very foundation on which it stands is no longer around. This alone is actually enough to argue that the concept of a caretaker government is implicit in the constitutional scheme of any Westminster type of constitution.

The nature of government in the system also implicitly tells us the limitations of a caretaker government and a government in a position to lay down policies and administer the nation due to the support it enjoyed in parliament.

The bottom line of all these explanations is that the Malaysian government essentially ceased to exist the moment the Yang di Pertuan Agong consented to the prime minister’s request to dissolve the Dewan Rakyat yesterday.

It may be argued that there is no need for the Yang di Pertuan Agong to make a formal appointment for a caretaker prime minister or government as this is implicit in the act of dissolution made by His Majesty. But of course it would be better if there is a formal appointment for things would be made clearer and less doubtful.

Unfortunately, our successive governments since Merdeka never committed themselves to this fundamental principle. In fact, after the 1969 general elections, the ‘caretaker’ made an emergency proclamation. A number of draconian laws were made under this proclamation and continue to be operative until today.

It was unfortunate that some 31 years later, the Federal Court upheld that executive action. It appears that the judges of the highest court of the land overlooked the notion of a caretaker government within our constitutional structure.

It is true that the constitution does not mention the word ‘caretaker government’ in any of its provisions. However, anyone who understands the nature of the cabinet as ‘responsible government’ would straight away recognise the existence of such an entity within the system.

In any case, after prescribing the way the prime minister and cabinet ministers are to be appointed under Article 43(2), the constitution says that a person appointed as prime minister while the House is dissolved shall not continue to hold the office when the new parliament begins after the elections. This undoubtedly refers to a caretaker government.

It has to be admitted that the legitimacy and basis of a caretaker government can only be appreciated through a comprehensive understanding of government in a Westminster system, something that was incorporated into the constitution by the Reid Commission way back in 1957.

Constitutionally improper

One also needs to see the constitution as a democratic instrument. It is certainly illogical and indeed monstrous to suggest that a caretaker government could initiate new policies or drastic measures such as proclaiming a state of emergency.

Also implicit in the concept is the prohibition of the use government facilities for political advantage during an elections. In simple terms, one could say that as the government has ceased to exist, ministers no longer hold any portfolios and thus are not in a position to use their official car, staff and other state resources.

One must admit that in order to allow our democratic institutions and traditions to develop and grow, those entrusted with public power and duties must ensure that they follow not only the letter but also the spirit of the constitution.

On some occasions, however, this has been overlooked. These include the formation of federal government after the 1999 general elections which took place some 11 days after the results were announced.

This was constitutionally improper particularly when the prime minister of the then caretaker government was spending his time, among others, attending the annual Lima defence industry show. A government should have been appointed almost immediately after the general elections.

While the constitution does not specify a time-frame, it was certainly unacceptable to wait 11 days. For one thing, the Yang di Pertuan Agong has a duty to call upon the leader of the winning coalition to form the government. This cannot be delayed as the King is under a duty to act on advice.

It would be recalled that the delay eventually caused havoc and confusion in the opening of the parliament as the opposition raised the constitutionality of the government that was actually a caretaker one.

Dr ABDUL AZIZ BARI is professor of law at the International Islamic University Malaysia.

The Federal Constitution clearly stipulates that under Article 40(2)(b), the King has the discretion to withhold consent to dissolve Parliament.

Similar provisions are also found in the state constitutions: the rulers and the Yang diPertua Negeri have similar power under Section 1(2)(b) of the Eighth Schedule of the Federal Constitution.

Legally speaking, these provisions operate independently of each other: what happens at the federal level has no bearing on the states although realpolitik may dictate otherwise.

It was clear that the provisions were conceived in the light of experience from the Commonwealth. According to the Reid Commission Report, it is unwise to allow the government of the day unrestricted right to dissolve the House.

Generally speaking the country should not go continue to go on the so-called ‘dissolution diet’. It goes without saying that dissolution would pave the way for the general election, which will use the country’s resources, time and money and thus is not always good for the nation.

Before we go further it should be made clear that:
* the term ‘to dissolve Parliament’ should be understood as dissolving the Dewan Rakyat;
* the King is only given the power to refuse assent to dissolve the House and does not have the power to dissolve the House at will;
* dissolution here refers to premature dissolution, namely before the House attains the five-year period at which it will dissolve automatically as stated by Article 55(3); and
* dissolution may have to be seen in conjunction with the formation of a government as the constitution prescribes that the King must have a government to advise him.

Although the constitution uses the term ‘discretion’ one ought not to understand this in administrative law way; namely that it is something that may allow personal choice.

The constitution, as elsewhere in the world, is a democratic document which expects the King to act as part of the checks and balances mechanism in the constitutional structure. As such he needs also to take into account whether the course of action he chooses would be in line with that democratic ideal.

As it stands, there has never been any occasion when the King has refused the request to dissolve the Dewan Rakyat since 1957. This is not surprising as most of the requests were made after the House has gone beyond four years and less than a year was left before automatic dissolution. At the state level, there have been several occasions when heads of state had rejected requests to dissolve the state assemblies made by the head of government.

Commonwealth examples

In the Commonwealth, there have been several occasions when the head of state was justified in refusing requests to dissolve the House. Generally, however, these occasions underlined what was not in the best interest of the nation.

Included are situations when the government asks for a motion of confidence: it is not advisable for the head of state to grant a dissolution for it is essentially a strategy taken by a besieged government and the head of state should instead allow the motion to take place. The head of state is also justified is refusing the request when there is a possibility of forming a government without going for fresh elections.

A head of state in a Westminster system may also refuse the request when it is not good for the entire nation. One particular governor-general refused to grant dissolution early in the last century as at the time most of the fishermen were still out in the sea. The list of situations may also include the attempts by the sitting government to call a snap election when the opponents were not ready.

Apparently, as the constitution is silent, we could go back to the recommendation made by the Reid Commission which left the final decision to the King. But what has taken place from the Commonwealth is certainly a good guide.

On top of that the King, despite being a constitutional monarch, is also the guardian of the constitution. Like other state functionaries such as members of Parliament and the judges the King has the responsibility to uphold the constitution.

Local refusals

If one looks at occasions when our heads of state have refused such requests, these would resemble the Commonwealth experiences.

The first occasion took place in Terengganu in 1962, involving the possibility of forming a government without calling an election. What happened here was the culmination of manoeuvres engineered by Umno which, after losing the elections, went to woo PAS representatives to join its ranks. The PAS-led state government began to collapse. As Umno gained strength, the sultan refused the PAS request to dissolve the assembly.

The second refusal took place in Kelantan in 1977. As in Terengganu it was part of the Umno-PAS rivalry. Although PAS held the majority, it had to give way to an Umno-preferred man, as the party wanted to keep the newly-formed Barisan Nasional (BN) alive and well. But it became too much to bear and PAS elected representatives passed a vote of no confidence against the mentri besar. He refused to resign and instead asked the Regent – the sultan was in Kuala Lumpur serving as the Yang di Pertuan Agong – to dissolve the state assembly.

The request was turned down and the state was thrown into crisis. The federal government – led by Umno – declared an emergency in Kelantan. This later paved the way for state elections in early 1978. PAS cabinet members resigned en bloc in protest and subsequently the party was sacked from the BN coalition.

What took place in Sabah in 1994 was not too different from the Terengganu incident. Interestingly enough it happened after Umno entered Sabah and led the state BN. It appears that as the PBS-led government was collapsing due to floor-crossing, the Yang diPertua Negeri was in a position to refuse a dissolution of the state assembly. As in Terengganu there was a possibility to form a government without fresh elections.

Given the nature of politics and bargaining among coalition members, what has happened at the state level may be repeated at the federal level. However, whether or not the King is strong enough to do what has been done by the rulers is another matter.

This is raised as unlike the rulers who essentially reign for life and thus quite in a commanding position the King is only in office for five years: he may not be strong enough to reject the request submitted by the prime minister who may have been in office longer than him!

In any case the argument put forward by the electoral reform coalition Bersih was persuasive enough. Indeed it is very much within the constitutional scheme.

This coalition of NGOs and political parties argued last November that given the problems in the electoral rolls, the King ought to refuse a dissolution, using his constitutional power under Article 40(2)(b).

A clean and credible electoral roll is vital for free and fair elections. Furthermore the country can wait and is in no hurry to go to polls. In any case it is constitutionally correct just to allow the House to continue until it dissolves by itself in May next year.

Dr ABDUL AZIZ BARI is a professor of law at the International Islamic University Malaysia

At this moment when the Prime Minister is expected to announce the imminent dissolution of Parliament to pave the way for the next general election, it is perhaps relevant and urgent that the critical issue of the power to dissolve Parliament be reviewed.

It seems to be a popular belief that the Prime Minister has absolute power to decide when Parliament is to be dissolved. Is there a constitutional basis for this belief?
The answer is no; for there is a clear-cut provision in the constitution whereby the Yang di-Pertuan Agong is given the power to withhold consent to a request for dissolution of Parliament. The fact that the Agong has always acceded to the Prime Minister’s request to dissolve Parliament in the past does not detract from this constitutional principle.

Granted that in the normal course of events the Agong is generally bound to act in accordance with the advice of the Prime Minister or the cabinet.

However, there are certain functions where the Agong is conferred the exclusive power to act on his own without the advice of the Prime Minister, and the power to withhold consent to dissolution of Parliament is one of them.

Agong’s discretionary powers

These discretionary powers of the Agong are clearly and unambiguously prescribed in Article 40 (2) of the constitution. In order to dispel any doubt as to whether these discretionary powers are really intended to be exercised by the Agong without any advice from the Prime Minister or cabinet, we will take a look at the entire Article 40 in full, which is titled “Yang di-Pertuan Agong to act on advice”.

Article 40 consists of four clauses, which are as follows:

Clause (1) is a general statement which says that when the Agong exercises his functions, he “shall act in accordance with the advice of the cabinet”, except as otherwise provided by the constitution.

Clause (1A) elaborates on Clause (1) to say that “where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice”.

Clause (2) prescribes the discretional powers of the Agong, and I quote this clause in full:
“The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say –

(a) the appointment of a Prime Minister;
(b) the withholding of consent to a request for the dissolution of Parliament;
(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting,
and any other case mentioned in this Constitution.”

While the discretional power on item (a) has to be exercised in conjunction with the provision of Article 43 Clause (2) (a) where the Agong is required to appoint “a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House”, the Agong’s power over item (b) and (c) is unencumbered by other provisions of the constitution.

Note also that the Agong’s discretional power is not confined to items (a), (b) and (c) alone, but covers “any other case mentioned in this constitution.”

Clause (3) merely says that the Agong may be required to act in consultation with bodies other than the cabinet, if so required by federal law.

Viewing the entire Article 40 in its full perspective, there is no doubt that the powers conferred in Clause (2) are prerogative powers exclusive to the Agong. They are intended to be exercised with the Agong’s own judgment without hindrance from others. And among these is the power to withhold consent to the Prime Minister’s request to dissolve Parliament.

Constitutional convention

Despite the clarity of our constitution on this issue, there are those who think that since we have inherited the Westminster system of government, we must follow the constitutional conventions of Britain and that means the Agong, like the Queen, must not exercise his own judgment, but to accept the Prime Minister’s decision to dissolve Parliament as a fait accompli.

The question I want to put across is: why must we follow the British constitutional convention?

We must understand that Britain is governed through what is famously known as an ‘unwritten constitution’, which is in effect a combination of written documents and unwritten rules. The written documents are statues and court judgments accumulated over the ages, while the unwritten rules are known as ‘constitutional conventions’ which are rules of constitutional behaviour recognized and accepted by the political players, though these are not legally binding. Under such a system, Parliament reigns supreme.

In contrast, Malaysia has a wholly written constitution, which being modeled after the British system, has already included many of the British constitutional conventions that were intended to be incorporated into our system of government. As such, our constitution is supreme, as stated in Article 4, which clearly states that any law which is inconsistent with the constitution shall be void.

And the courts must interpret the constitution from the words alone without importing extraneous rules and practices. There is therefore no justification to use any so-called convention to usurp the personal power expressly granted to the Agong under Clause (2) of Article 40.

In fact, as far as adherence to the British constitutional convention is concerned, hardly any commonwealth country is following strictly to these British rules, despite almost all of them having inherited the British system at the time of independence. This is understandable, as no independent state fully exercising its sovereignty can remain contended at faithfully maintaining the constitutional traditions and practices of its former colonial ruler.

A most prominent case is the Australian crisis of 1975, when a political stalemate in the midst of a series of breaches of conventions by both the ruling and opposition parties in parliament led to the sacking of then Prime Minister Gough Whitlam by Governor General John Kerr, which is itself a major breach of convention.

Can you imagine the Queen sacking the Prime Minister of Britain? But this is exactly the kind of constitutional drama that took place in Australia, which ironically remains as one of the ex-colonies most closely linked to Britain, symbolized by maintaining a head of state whose official status is a representative of the Queen.

These events illustrate the impracticability of expecting the British constitutional conventions to be faithfully adhered to outside the United Kingdom.

And so, Malaysia being a sovereign state with a constitution that is fully written, I don’t see why the Agong should feel any unease when any exercise of his discretional power sanctioned by the constitution should be found in variance with the British convention – such as withholding consent to dissolve Parliament.

Political crisis

The real issue Malaysians must focus on is: under what circumstances should the Agong withhold his consent. Though there is no clear statement in our constitution on this issue, a hint can be found in Article 43 (4), which I quote in full:

“If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.”

This clause implies that the Agong can turn down the Prime Minister’s request to dissolve Parliament in the event that the latter loses the support of the majority of members of Parliament, in which event, the PM together with the cabinet will have to resign.

Following such resignation, the Agong will have to appoint a new PM who will in turn select a new cabinet. In short, a new government will be appointed.

This also implies that, in the event the PM loses majority support in Parliament, the Agong has the prerogative to decide on how the political crisis is to be resolved – either by appointing a new Prime Minister who can command majority support in Parliament, or by holding a new election, for which Parliament has first to dissolve.

We can see from this scenario that the Agong possesses vast powers to extricate the nation from a crisis by virtue of the provisions in Article 40 (2). The question in our minds is: apart from the PM losing majority support in Parliament, what other serious political turmoil or grave abuses that could give rise to the Agong acting under Article 40 (2) (b) – such as the degrading of the electoral system to the point that it has destroyed the democratic foundation of our nation?
I will deal with these issues in my next article.

KIM QUEK is a retired accountant and PKR member.