By Pathma Subramaniam
The Malay Mail Online
March 25, 2014

SUBANG JAYA, MARCH 25 — Every single principle governing the running of a free and fair election was breached during last year’s May 5 federal polls, Bersih’s People’s Tribunal concluded in its findings released today.

Panel member former United Nations Special Representative and constitutional law expert Yash Pal Ghai said Election 2013 had fallen short of every aspect of democracy and violated the standard of free and fair elections.

He agreed that the election had been free to some extent because those who were registered voters were not blocked from casting their ballots but said this freedom was more in a “narrow sense” of the word.

During Election 2013, the ruling Barisan Nasional (BN) retained federal power with 133 seats to Pakatan Rakyat’s (PR) 89 seats despite losing the popular vote contest to the federal opposition, garnering just 49 per cent of the total votes cast.

“We have found ourselves compelled to reach a conclusion that there were multiple failings in the way GE13 was conducted and that virtually every tenet of free election was violated at some place and at some time,” said Yash Pal, who headed the tribunal.

“There were so many breaches of law, disregard of procedures that we have to conclude that elections were not free and fair,” he said, reading out the verdict and recommendation of the five-person panel.

The recommendations, which included proposed amendments to the constitutions on electoral reforms, were concluded after the panel considered sworn statements from 75 witnesses.

Of the 75, 49 appeared personally during public hearings from September 18 to 21 last year.

The panel also proposed reduce the voting eligibility age from 21 to 18 years, and called for equal voting access for Malaysians living abroad.

Yash Pal said the various complaints from individuals who never registered as voters and those who were transferred out of their voting districts, indicate a “deliberate act of fraud”.

“Registering one or two people in the wrong constituency might be carelessness; registering those who have not sought registration is suspicious,” said Yash Pal, adding that it is hard to exonerate the Election Commission (EC) of collusion as identification cards are required upon registration.

Noting the difficulty in ensuring an electoral roll is completely void of discrepancies, another panel member, lawyer Datuk Azzat Kamaluddin, said political parties should establish a specific unit to check the voter registry.

This, he pointed out, is to prevent from a complainant running into legal constraints when it comes to challenging discrepancies in the roll. The Election Act 1958 provides no legal avenue to those who want to challenge a gazetted electoral roll.

On the first-past-the-post electoral system practiced by Malaysia, Yash Pal labelled it questionable as it relies heavily on the fairness of delineated electoral boundaries, which has been repeatedly questioned by federal opposition lawmakers and activists here.

“Individual voters will not be equally represented if they are in constituencies with significantly different number of voters and the actual outcome of overall results can severely be affected by moving boundaries.

“A witness gave evidence that, on average, a vote for BN was worth 1.6 times a vote for PR, because PR-leaning constituencies are on average larger,” he said, adding that it does not reflect “the principle of one person, one vote, one value”.

In order to reduce the glaring ratio, the panel proposed amendments to laws defining the criteria on the size of urban and rural constituencies, crucial to the delimitation process.

The Electoral Integrity Project (EIP), a study by University of Sydney and Harvard University, recently showed Malaysia’s electoral demarcations as the worst of 66 countries in terms of fairness and integrity of its electoral boundaries.

Today, the Bersih panel mooted the idea of a Boundaries Commission, to avoid burdening the EC on the matter of drawing boundaries.

Former Indonesian Election Commission deputy chairman Ramlan Surbakti Ramlan Surbakti suggested that the commission could be set up using the similar mechanisms used in Indonesia to select its EC.

According to him, anyone capable is allowed to apply to sit on the EC but the applicants are vetted by a committee formed by the Indonesian president and the names are then submitted to parliament for further scrutiny.

Apart from these recommendations, the panel also proposed a revamp of the EC members’ appointment process, equal access to the media and transparency on political funding.

The panel also suggested stricter regulations enforced on the caretaker government to stave off “promises designed to influence outcome of the elections”.

Bersih 2.0 chairperson Maria Chin Abdullah said the polls watchdog has requested for an appointment with Prime Minister Datuk Seri Najib Razak to deliver the report on the findings.