e) engaged in full-time studies at any university, training college - - PDF document

• Absent Voting for Malaysians: Enfranchisement and Efficiency

PURPOSE OF PAPER This is a presentation by Global Bersih at the Electoral Reform Roundtable at the Malaysian Parliament, 30 November to 1 December 2018. Absentee voting is a fundamental mechanism to ensure all citizens may exercise their right to vote. A voter who is not physically present in their constituency on the designated election day should not be barred from exercising her right to vote. Unfortunately, absent voting has become a haphazard process, as demonstrated in recent elections. This paper seeks to streamline the process and recommend changes for more profoundly effective and equitable outcomes. BACKGROUND: THE CURRENT CONTEXT Definition of absent voter Article 119 of the Federal Constitution gives the right to vote to every Malaysian citizen who is 21 or

• above. The Article defines a voter as being either a resident of a constituency or an absent voter.

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“Absent voter” is defined neither in the Federal Constitution nor the Elections Act 1958. However, the Election Commission (“EC”) has the authority to decide how absentee voting will be carried out in Malaysia and who has the right to participate, since the statutes empower the EC to regulate all matters regarding voter registration. This includes prescribing facilities for voting by post and determining the persons entitled to vote by post.

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In Regulation 2 of the Elections (Registration of Electors) Regulations 2002, "absent voter" is defined as a citizen who has attained the age of 21 years on the qualifying date and is -

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a) a serving member of any regular naval, military or air force of Malaysia, the Commonwealth

• r other country;

b) the spouse of a serving member of any force referred to in paragraph (a), who elects to become an absent voter; c) in the public service of the Government of Malaysia or of any State or in the service of any local authority or statutory authority exercising powers vested in it by Federal or State law, who is on duty outside the boundaries of Peninsular Malaysia or Sabah or Sarawak; d) the spouse of a person in the public service of the Government of Malaysia or of any State

• r in the service of any local authority or statutory authority exercising powers vested in it

by Federal or State law who is living with her or his husband or wife outside the boundaries

• f Peninsular Malaysia or Sabah or Sarawak at the date of application for registration as a

Parliamentary or State elector;

Article 119 of the Federal Constitution - http://www.wipo.int/edocs/lexdocs/laws/en/my/my063en.pdf

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The Elections Act 1958 -http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Act%2019%20-%20Reprint%202016.pdf

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Regulation 2 of the Elections (Registration of Electors) Regulations 2002-

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https://www.parlimen.gov.my/images/webuser/jkuasa/memorandom/BERSIH%202.0/Election%20Regulations%202002.pdf

e) engaged in full-time studies at any university, training college or any higher education institution outside the boundaries of Peninsular Malaysia or Sabah or Sarawak; or f) the spouse of a person engaged in full-time studies at any university, training college or any higher education institution outside the boundaries of Peninsular Malaysia or Sabah or Sarawak who is living with her or his husband or wife at the date of application for registration as a Parliamentary or State elector. Two voting methods for absent voters: advance voting and postal voting Two methods currently in use for absentee voting in Malaysian elections: a) Advance voting – for voters from category (a) who will be on official duty on the election day and (b). b) Postal voting – for voters from categories (c) to (f). In the 13th General Election ("GE13") the “postal vote” was, for the first time, offered to Malaysian citizens overseas who previously did not fit the description of an "absent voter" as defined in Regulation 2 of the Elections (Registration of Electors) Regulations 2002. To be specific, the methodology that was used fits better under the term “overseas advance voting” as the method of voting was that voters still had to submit ballots in person at the overseas polling locations. During the 14th General Election ("GE14") for the first time, postal voting in the real sense was opened to Malaysian citizens overseas who previously did not fit the description of an "absent voter" as defined in Regulation 2 of the Elections (Registration of Electors) Regulations 2002. Overseas Malaysians could register to vote online, and the ballot papers were sent by post and were to be returned by post within the set deadline. Note, however, that this option was not open to Malaysians in neighbouring countries – see below. Although postal voting is one of the most feasible options for overseas voters, the overseas postal voting system in GE14 was a glaring failure because of systemic inefficiencies and impossible time constraints (see Appendix 2). We therefore propose to modify the existing postal voting framework by streamlining the absent voting process and extending the campaign period to accommodate postal logistics. OVERSEAS MALAYSIANS: A GROWING ELECTORATE The current interpretation of absent voters is outdated as it was developed at a time when fewer Malaysians were residing abroad. In a report called “Malaysian Economic Monitor: Brain Drain”, the World Bank shows that in 1980 the Malaysian diaspora was estimated at 286,102 worldwide, growing into an estimation of 452,109 in 1990. According to recent United Nations estimates, the number of

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Malaysians abroad soared to 1.9 million in 2017 from 1 million in 2010.

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In Singapore alone, the World Bank placed the number of Malaysian diaspora at close to 385,979 in

• 2010. The numbers show a more than 20% rise compared with ten years earlier in 2000 when the

figure recorded by World Bank was 303,828. If we project the existing World Bank statistics, the

See http://documents.worldbank.org/curated/en/282391468050059744/pdf/614830WP0malay10Box358348B01PUBLIC1.pdf - Page

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90 See http://www.migrationdataportal.org/data?cm49=458&focus=profile&i=stock_abs_&t=2017

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See http://documents.worldbank.org/curated/en/282391468050059744/pdf/614830WP0malay10Box358348B01PUBLIC1.pdf - Page

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Malaysian diaspora in Singapore must have reached the nearly half a million mark. From these figures,

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• ne can see that nearly half of the overseas Malaysians are disenfranchised by virtue of residing in

Singapore. Moreover, if the voting age is indeed lowered to 18 years, as indicated by the EC, and automatic registration is implemented, then this will further enlarge the overseas electorate. This sizeable electorate means there is an urgent need for a more robust and reliable system. Overseas Voters subjected to arbitrary and inequitable disenfranchisement During GE13, the EC did not provide for advance voting in Singapore, Brunei, the Indonesian province

• f Kalimantan, and the southern provinces of Thailand. Similarly, the postal vote was denied to

Malaysians residing in these areas during GE14. No valid or logical reason was given; the restriction is thus arbitrary and inequitable. The right for Malaysians to vote should not be conditioned by the distance between the voter and his

• constituency. The distance does not reflect in itself the difficulty and financial burden that an individual

has to incur in order to vote. The burden represented by travel costs is proportionate to the financial situation of the voter, and other limitations - such as the need to take time off from work, last minute flight arrangements and many other factors - have also to be taken into account. For example, it may be easier for a lawyer in London who is independent and has the financial means to arrange his holidays to go back to his constituency to vote than it is for a labourer who is residing in Singapore and needs to travel back to the hinterland of Sarawak. Therefore we urge the EC to remove any geographical limitations to absentee voting. Sabah and Sarawak voters also disenfranchised The geographical limitation is also a significant problem for voters within Malaysia especially West Malaysians residing in Sabah and Sarawak and vice versa. Bersih 2.0 estimated that there are more

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than 150,000 registered Sabahan and Sarawakian voters living in West Malaysia. Currently, these voters have to travel to their constituency to vote, and time, financial and other constraints prevent many of them from going home to exercise their rights. Famously, there were campaigns carried out by individuals and grassroots initiatives like the #PulangBalikUndi (Return to Vote) and Global Bersih’s own #JomBalikUndi (Let’s Return to Vote) campaigns to support and encourage overseas voters to return to vote. However, there should not even be a need for voters to expend such extraordinary efforts to exercise their right to vote. The EC should step up and amend existing regulations to allow not only Sabahans and Sarawakians, but also West Malaysians living in Sabah and Sarawak, to vote from where they reside, instead of returning to their constituency in their state of origin to cast their ballot. These voters can be enfranchised using the current postal voting structure by including them in the definition of absent voters by law. The EC should also consider postal voting for Malaysian voters who are working in West Malaysia but who are not residing in their West Malaysia constituency at the time of polling, and similarly with those working in East Malaysia but who are not residing in their East Malaysia constituency at the time of

• polling. For example, a person whose electorate is Alor Setar but who works in Johor.

The fact that there is no stable system to include all of the above Malaysian voters is inexcusable. It is crucial that we take them into account and secure their right to vote as stated in the Federal Constitution.

See http://documents.worldbank.org/curated/en/282391468050059744/pdf/614830WP0malay10Box358348B01PUBLIC1.pdf - Page

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90 https://www.borneotoday.net/allow-sabah-sarawak-people-in-peninsular-to-register-as-absentee-voters/

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RECOMMENDATIONS #1 Redefine “absent voters” in the law “Absent voters” under Regulation 2 of the Elections (Registration of Electors) Regulations 2002 should include all Malaysians who are unable to vote in their constituency and on the designated day. To avoid any doubt, this includes: a) Malaysians in neighbouring countries - Singapore, Brunei, the Indonesian province of Kalimantan and the southern provinces of Thailand; b) Malaysians residing in West Malaysia who are registered to vote in Sabah or Sarawak and vice versa; and c) Any Malaysian who will be ‘outstation’ at the time of polling whether they be within West

• r East Malaysia. For example, a person whose electorate is Alor Setar but who works

in Johor. d) Malaysians residing overseas; Consider having a single category of absent voter If feasible, it would make sense to also include serving members of any regular naval, military or air force of Malaysia, and their spouses, as postal voters. This would streamline the voting process for any category of Malaysian who is unable to vote at their electorate and on the designated day. #2 Implement ongoing and standardised registration for absent voters The next step is to implement ongoing registration for all absent voters including those overseas. Currently, overseas Malaysians are only allowed to register to vote from overseas a few months before the general election. This should be changed to be an ongoing process. The EC must also decide on a standardised and predictable polling system for absent voters so that Malaysians overseas know what to expect. The different procedures used for GE13 and GE14 led to immense confusion among

• verseas voters.

Efficient and ongoing registration We need to develop and implement a standardised system for registration (for all absent voters). Taking absent overseas voters as an example, an ongoing registration process could look like the following: a) Any Malaysian living overseas for any length of time who fulfils all the requirements should be able to download Borang 1b from the EC website and apply to use the overseas voting process at any point in time; b) Once the application has been approved/rejected, the EC should immediately inform the applicants by e-mail or post; c) Once the application is approved, the status should be updated immediately on the Semakan Daftar Pemilih; d) If there is a change of address, it is the responsibility of the applicant to inform the EC;

e) As the election approaches, the EC should announce the registration deadline as early as possible, or better yet, a standard deadline should be applied such as a set number of days after the date of the parliament dissolution. This ongoing registration will ensure that the EC will be able to process all applications on an

• ngoing basis without time pressure. At the same time, overseas Malaysians will also have a more

transparent registration system and are informed of their registration status. This system also allows overseas Malaysians to be prepared with all the requirements. #3 Standardise the voting process The postal voting process would work well if it is done efficiently and in good faith by the EC. Global Bersih encourages the EC to review the last two overseas voting processes that were used in GE13 and GE14 and then decide on a standardised voting process for overseas Malaysians and all

• ther categories of absent voters. The standardised voting process must fulfil the four objectives that

Global Bersih previously raised in its overseas voting proposal (see Appendix 2):

• Enfranchisement of all Malaysians living abroad, without any geographical limitation, or

residing elsewhere than their constituency

• Maintenance of voter secrecy
• Maintenance of transparency and security
• The legitimacy of the outcome of the election

We believe that a standardised overseas voting process that covers the four areas above will be a significant step in solving most of the problems that have arisen till now. The voting procedure should be the same for all upcoming elections, and any changes or new requirements must be publicised at least six months before Nomination Day. Consider online voting Global Bersih also urges the EC to investigate options like online voting before standardising the

• process. Online registration and voting have been successfully carried out by many countries

around the world, including Switzerland and the Philippines. Consider a fixed-term election Having inherited a Westminster-style democracy, we do not have a fixed-term election where the election date is set. It is said that the original reason for allowing a Prime Minister to call the date of elections is so that he or she may “go to the people" when they deem this necessary. However, this mechanism is open to abuse by those who wish to hold on to power for longer, and is often used for political rather than for democratic reasons. Many countries, including the United States, Britain and Canada have fixed-term elections. By setting a fixed date for the election, the pressure on all the involved stakeholders could be immensely reduced, and would provide more predictability and visibility for all voters and stakeholders, including political and economic actors. For overseas Malaysians, who need more advance notice to organise their work and personal commitments, and travel arrangements, a fixed date would help alleviate organizational constraints to voting. It also enables the possibility of setting more effective processes and feasible deadlines for

• verseas voters. It can also win the trust of the voters as it will remove the ability of an individual or

party to call elections for political reasons.

#4 Extend the campaign period The above changes must happen against the larger matrix of reform - such as automatic voter registration (as soon as a citizen turns 18 years old), and a minimum of 28 to 30 working days of campaigning period. The longer campaign period would allow a reasonable time for the effective and equitable functioning of voting mechanisms provided for absent voters, e.g. for ballots to be sent

• verseas and returned by post, in the case of postal voting. During GE 14, many Malaysians had to

incur expensive costs for urgent couriers to ensure their vote was returned in time, an inequitable situation especially for those with few resources, such as students. #5 The EC is to take whole responsibility for the overseas voting process After analysing our data collection during GE14, we concluded that an integrated and standardised system overseen by a proposed central Postal Voting office will significantly improve confidence in the process and will encourage a stronger uptake among Malaysians. (Appendix 1). We call on the EC to take the whole responsibility in carrying out the overseas voting process, from registration to voting. This centralised system is to ensure that the EC is solely responsible for all matters involving overseas voting. The best option will be to have a specialised department focusing on Absent voting – an Office for Postal Voting. Countries like the Philippines have a specialised department in their Commissions of Elections to handle absent voting. This can ensure that the process stays consistent and it will be easier to mobilise overseas voters to take part in the election process as they will be able to put more trust on a consistent system handled by EC. CONCLUSION Malaysians living, working and studying overseas, or outside their constituencies, now represent a significant proportion of the electorate. A credible, effective and equitable voting mechanism, which does not impose an undue burden on such voters, is therefore essential. In summary, our recommendations are for the EC to: 1) Redefine “absent voters” in the law; 2) Implement ongoing registration for absent voters; 3) Standardise the voting process; 4) Extend the campaign period; and 5) Take whole responsibility for the overseas voting process. Embedded within these recommendations are further suggestions to consider online voting, a fixed- term election and automatic registration as soon as a citizen turns 18 years old. In addition, we suggest considering having a single category of absent voter to streamline the process. GE14 was a total failure for many overseas absent voters. Therefore the EC must win the trust of

• verseas absent voters and civil society. We believe these changes will significantly gain the trust from

more Malaysian voters to participate in the absentee voting system. Global Bersih 10 Rue Dr. Alfred, CH- 1201 Geneva Switzerland. contact@globalbersih.org www.globalbersih.org. Facebook: GlobalBersih Twitter: GlobalBersih