Going to the Ballot Box

Petrina Tan provides an overview of the general election process in Malaysia

 

The 13th General Election is imminent as the 5-year mandate given to the political parties to form the Federal Government and the respective State Governments at the 12th General Elections will expire on 28 April 2013. Malaysians from all walks of life will soon get swept up in the election fever as candidates from both sides of the political divide woo voters with fiery speeches at ceramahs (political rallies) and through the electronic media.

This article provides an overview of the general election process, from nomination of the candidates to polling day and to election petitions and election offences.

 

THE LEGAL FRAMEWORK

Elections in Malaysia are governed by the Federal Constitution, the state constitutions and the following acts and regulations: the Election Commission Act 1957 (“ECA”), Elections Act 1958, Election Offences Act 1954, Elections (Conduct of Elections) Regulations 1981, Elections (Registration Of Electors) Regulations 2002 and Elections (Postal Voting) Regulations 2003.

 

CALLING THE SHOTS
 
The Election Commission (“EC”) was formed pursuant to the ECA. It is central to the election process as its primary task is conducting general elections and by-elections. The EC reviews and delineates Parliamentary and State constituency boundaries, registers voters and reviews the electoral roll that contains the names, details and constituencies of voters.

 

THE RIGHT TO BE COUNTED

Every Malaysian citizen of 21 years of age and above who is resident in a constituency and is registered on the electoral roll as a voter is eligible to vote. Persons of unsound mind and prisoners are disqualified from voting.

Malaysians abroad may vote as absent voters if they meet certain specified criteria e.g. those in government service and the armed forces and full time students in universities, training colleges or higher educational institutions and their respective spouses.

Mass media workers, including electronic and portal media workers, who are certified by their employer to be liable for duties outside their registered constituencies to cover the election (but not other events) on a polling day, have recently been included as a new category of postal voters.

 

LET THE GAMES BEGIN  

The general election process kicks off with the dissolution of Parliament and the State Legislative Assemblies. Returning Officers (“RO”) will be appointed by the EC for each constituency to oversee and conduct the election. The EC will then issue writs to the ROs to empower them to conduct the election. After the writs are issued, a notice of election will be gazetted for public display at various locations. The notices contain 2 very important dates, namely Nomination Day and Polling Day.

There is no legal requirement for state and federal elections to be held simultaneously. For example, state elections for Sarawak are held at a different time from federal elections.


FACE OFF

On Nomination Day, the RO of each constituency will receive the nomination forms from the candidate and his proposer and seconder, or from any two or one of them, between 9.00 a.m. to 10.00 a.m. at the nomination centre set up by the EC. Often, the candidate, his proposer and seconder will march to the nomination centre with pomp and style, accompanied by a coterie of loyal party supporters bearing flags and banners.

The nomination forms must include inter alia a statutory declaration by the candidate and an election deposit paid by the candidate. For parliamentary seats, the election deposit is RM10,000.00 whereas the deposit for state seats is RM5,000.00. This deposit is forfeited if a candidate fails to secure at least 1/8th of the total number of votes cast in a constituency.

After the nomination forms have been posted in a conspicuous location outside the nomination centre, the RO and the assistant RO will closely scrutinise the forms to verify that they are complete and that the candidate is qualified to stand for election. Grounds for automatic disqualification include being an undischarged bankrupt, failure to submit election expenses returns or being convicted, within the preceding 5 years, of an offence and sentenced to a term of imprisonment of not less than 1 year or a fine of not less than RM2,000.00.

Any candidate or registered voter of the constituency may raise objections against the nomination forms to the RO on the grounds that the particulars of the candidate in the nomination form are insufficient for identification or that the form does not comply with the statutory requirements. However, they are limited to a tight one hour time frame i.e. from 10.00 a.m. to 11.00 a.m. on Nomination Day itself. The RO will decide on the validity of the objection and this decision is final, although a person aggrieved by the RO’s decision may present an election petition against it within 21 days of the election result being gazetted.

Once the RO has concluded checking the forms, he will announce the candidates’ names and their respective parties contesting the election. At this point, the public will know whether there will be any clash of the titans where leading candidates from opposing parties lock horns in a battle that will consign the loser to the political wilderness, at least until the next election or by-election.

If there is only one qualified candidate, that candidate will be declared as winner of the election without contest.

 

RULES OF ENGAGEMENT

The election campaign begins as soon as the RO announces that an election will be contested in a constituency. Campaign activities range from the ever popular ‘ceramahs’ by candidates, affixing of posters and party flags to walkabouts and visits to the constituency. Needless to say, the fight for votes will also be carried out through campaigns in cyberspace. The frenetic campaign activities end at midnight on the eve of Polling Day.  

A candidate requires a permit from the State Elections Officer in order to display or distribute election campaign materials to the public. A candidate is also required to pay a campaign materials deposit of RM5,000.00 for a parliamentary seat and RM3,000.00 for a state seat.

The deposit is returned to the candidate or his agent when all his campaign materials are cleared within 14 days of polling. If a candidate fails to attend to the cleaning up within the specified period, the deposit will be used by the local authority to clean up the constituency and any balance will be returned to the candidate or to his agent, as the case may be. Where the cost of cleaning up exceeds the deposit, the difference is a debt due to the Government and may be recovered from the candidate accordingly.  

It is worth noting that there is a cap on permitted election expenses i.e. not more than RM200,000.00 for a parliamentary seat and not more than RM100,000.00 for a state legislative assembly seat. A candidate is required to submit a return of his election expenses to the EC within 31 days from the date on which the election result is gazetted. Failure to do so will result in the candidate being ineligible for election for 5 years from the date that he is required to lodge the return as aforesaid.

 

THE DAY OF RECKONING

Polling Day runs from 8.00 a.m. to 5.00 p.m. nationwide, except in certain polling centres in remote areas in Sabah and Sarawak where polling ends earlier. It will see the turnout of the electorate, whose names are listed on the electoral roll at polling centres to cast their votes. Votes are given by ballot and marked on ballot papers. These ballot papers are marked with a number on the top left hand corner which corresponds with the number marked on the counterfoil attached to it.

Malaysia practises the rule of ‘one person, one vote’ based on the principle that every person counts for one and no more. However the great disparity in the number of voters between the larger urban constituencies and smaller rural constituencies greatly dilutes the efficacy of this rule.

Absent voters, such as members of the Armed Forces and the Royal Malaysian Police, are advance voters by default and must cast their votes 3 days earlier or by post. In any event, all marked postal ballot papers must reach the RO’s office by 5.00 p.m. on Polling Day.

Once polling closes, the Presiding Officer, together with the Counting Clerks, will begin counting the ballot papers comprising the day’s votes as well as postal votes. The counting of votes is a tense affair and is conducted under close scrutiny by eagle-eyed representatives of the candidates to ensure that the votes cast are properly accounted for. A candidate may request for a recount of the votes.

Election winners are decided based on the ‘simple majority’ or ‘first past the post’ principle. The RO will declare the winner after the votes have been tallied. The decision of the RO is final but a dissatisfied party may challenge the RO’s decision by filing an election petition to the election court.

The ballot papers will be kept in safe custody by the RO for 6 months from Polling Day. Unless otherwise directed by the EC, the RO will destroy the ballot papers at the end of the 6 months period.  

 

RECOURSE FOR THE VANQUISHED
           
The results of an election can only be challenged by an election petition which must be submitted within 21 days from the date of the election results being gazetted.

An election petition is heard in a High Court which is convened as an election court. The hearing of the petition is to be completed within 6 months from the date on which the petition is presented. A petitioner who is dissatisfied with the decision of the election court may appeal directly to the Federal Court.

Grounds for an election petition are as follows: bribery, intimidation or other misconduct which may affect the outcome of the election, non-compliance with election laws and regulations, acts of corruption or illegal acts committed by a candidate or his agent or ineligibility of a candidate to participate in the election.  

 

ELECTION OFFENCES

The Election Offences Act 1954 sets out three main types of election offences i.e. electoral offences, corrupt practices and illegal practices in relation to election agents and election expenses.

Election offences range from tampering with the electoral roll, nomination paper, ballot paper or ballot box, corruptly inducing persons to vote for a certain candidate to employers prohibiting their employees from voting. A prosecution under the Election Offences Act 1954 may only be instituted with the sanction of the Public Prosecutor.

 

CONCLUSION

The 13th General Election will be a watershed for Malaysians. Will the outcome be a resounding victory for the incumbent Prime Minister, Dato’ Seri Najib Tun Razak, and signify the end of the road to Putrajaya for de facto opposition leader, Anwar Ibrahim? Or will we witness the “Revenge of the Fallen” for this charismatic but aging opposition leader? We will find out … soon enough.

 

Writer’s e-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

 

 

 
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