The following submission was made to the Parliamentary Select Committee on Electoral Reform on 16 December 2011. MyOverseasVote submitted draft regulations that would allow for overseas postal voting, in accordance with the interim recommendations of the Committee that were accepted by the Dewan Rakyat on 1 December 2011, and called for the Committee to set a deadline of the end of January 2012 for the EC to adopt the necessary regulations to implement the Committee’s recommendation.
16 December 2011
Parliamentary Select Committee on Electoral Reform
VOTING RIGHTS FOR MALAYSIANS OVERSEAS
1. This submission is made to the Parliamentary Select Committee on Electoral Reform (the “Committee”) by MyOverseasVote UK, an unincorporated association which was established in London under the laws of England and Wales in October 2010 to press for voting rights for over 1 million Malaysian citizens overseas.
2. MyOverseasVote UK has been involved in supporting an action by six Malaysian citizens resident in the UK who have brought judicial review proceedings against the Election Commission (“EC”) for refusing them the right to register as absent/postal voters in order to vote in the upcoming general election. This judicial review will be heard by the High Court in Kuala Lumpur on 3 January 2012.
3. MyOverseasVote UK believes that all Malaysian citizens resident outside Malaysia should have the right to vote by post. We accept the Committee’s recommendation in its interim report that Malaysians resident overseas should be added as a new category of postal voter, and recommend that the EC should adopt the draft regulations in the Appendix to these submissions. In any case, we call upon the Committee to set a deadline for implementation of no later than the end of January 2012.
4. Article 119 of the Federal Constitution gives the right to vote in elections to every Malaysian citizen who has attained the age of 21 years on the qualifying date and: (i) is resident in a constituency in Malaysia on the qualifying date, or (ii) is an absent voter; and is registered as an elector for that constituency.
5. The Elections Act 1958 (the “Act”) does not define absent voters, but section 15 of the Act gives the EC the power, with the approval of the Yang di-Pertuan Agong, to make regulations for the registration of electors and for all matters incidental thereto.
6. Regulation 2 of the Elections (Registration of Electors) Regulations 2002 (the “2002 Regulations”), made under section 15 of the Act, defines “absent voter” as a citizen who has attained the age of 21 years and is (i) a member of any regular armed force of Malaysia or a Commonwealth or foreign country, (ii) a Malaysian public servant stationed overseas, (iii) a full-time student in higher education, (iv) (subject to certain conditions) a spouse of any of the above.
7. Section 16 of the Act also gives the EC the power, with the approval of the Yang di-Pertuan Agong, to make regulations for the conduct of elections and for all matters incidental thereto. Section 16(2)(n) specifically gives it the power to prescribe the facilities to be provided for voting by post and the persons entitled to vote by post.
8. Regulation 3(1) of the Elections (Postal Voting) Regulations 2003 (the “2003 Regulations”), made under section 16 of the Act, gives the right to be a postal voter to absent voters (as defined in the 2002 Regulations) and certain other categories of voters. Overseas Malaysians do not currently qualify unless they qualify as absent voters.
9. The exclusion of the vast majority of overseas Malaysians from the definition of “absent voter” and thus from being postal voters is unconstitutional because it amounts to unreasonable discrimination between citizens on the grounds of their occupation and the identity of their employer in a matter as fundamental as the right of each citizen to vote. This discrimination is arbitrary and not based on any rational or reasonable grounds, contrary to Article 8 of the Federal Constitution.
The EC’s position
10. Although the EC Chairman, Tan Sri Abdul Aziz Yusof, announced on 25 August 2011 that all Malaysians overseas would be allowed to vote by post, the EC has clarified to MyOverseasVote that the EC Chairman never promised that the EC would do so before the next general election. Nearly four months after the announcement was made, the EC has still taken no action to enable Malaysians overseas even to begin the process of registering as absent/postal voters.
11. Overseas Malaysians are increasingly worried that the 13th General Election will come and go while they continue to be deprived of their constitutional right to vote.
The Committee’s Interim Recommendation
12. On 1 December 2011, the Committee made the following recommendation, which was accepted by the Dewan Rakyat:
Jawatankuasa memutuskan supaya kategori pengundi pos di luar Negara dibuka pada semua pemastautin yang layak mengundi di luar Negara. Ini bermakna Peraturan-Peraturan Pilihan Raya (Pengundian Pos) 2003 dipinda dengan memasukkan suatu peruntukan 3(1)(g) dalam yang menyatakan bahawa pemastautin warganegara Malaysia yang layak mengundi adalah dibenarkan untuk mengundi secara pos di luar Negara. Bagi tujuan tersebut, Jawatankuasa juga berpendapat bahawa terdapat keperluan untuk mengadakan peruntukan berkenaan Akuan Berkanun (Statutory Declaration) bahawa pengundi tersebut berniat mengundi di luar Negara di konsulat Malaysia. Jawatankuasa juga berpendapat bahawa SPR perlu mengadakan suatu peraturan berkenaan pengundian pos bagi warganegara Malaysia di luar Negara.
13. Although MyOverseasVote UK has previously pressed for Malaysians overseas to be given postal votes by expanding the definition of “absent voter” in the 2002 Regulations, we are willing to accept the Committee’s and the Dewan Rakyat’s decision to give Malaysians overseas postal votes by expanding the definition of “postal voter” in the 2003 Regulations, which will allow Malaysians overseas to register as postal voters without having to repeat the lengthy process of voter registration in order to become absent voters.
14. However, because Regulation 3(3) of the 2003 Regulations currently requires applications for postal votes to be made only after it is known that an election will be contested, the current mode of application cannot be used for overseas Malaysians, as it will be impossible for 1 million Malaysians to apply for postal votes after nomination day and to receive their postal votes in time to exercise and return their votes by 5pm on polling day.
15. It is therefore necessary to draft new regulations to deal with overseas postal voting, as was envisaged by the Committee. We have drafted the regulations that we believe should be adopted by the EC in order to allow for overseas postal voting, and these appear in the Appendix.
16. We propose that any registered voter who resides overseas and wishes to vote by post should make an application to the Malaysian consulate in the country in which he resides, giving his postal address overseas. We believe that in order to prevent fraud, all applications for overseas postal votes must be made overseas to the relevant consulate and accept the Committee’s recommendation that each application should be supported by a statutory declaration. In countries or territories where there is no Malaysian consulate, the EC should designate another consulate to act for that country or territory.
17. Provided that the applicant’s identity and voter registration status is confirmed online, the application should be approved by the Malaysian consulate concerned and the applicant’s details passed to the EC for registration. The EC should then maintain a register of overseas postal voters for each constituency. This register should be available for inspection online, except that the postal addresses of voters should not be shown online.
18. Voters should be able to apply for a postal vote at any time up to nomination day. Once a voter is added to the register of overseas postal voters, he will remain an overseas postal voter until the conclusion of the first subsequent general election, when the register will be wiped clean. If there is a by-election in a constituency before the first subsequent general election, voters on the overseas postal voters’ register for that constituency will also be able to vote by post in that by-election.
19. This means that overseas voters will have to re-register as a postal voter after each general election or at any time if they change their postal address. However, if they return to Malaysia after the first subsequent general election, as many do after their studies or a work attachment, they will be able to vote in Malaysia without having to re-register as an ordinary voter.
Issuance of postal ballots
20. At present, postal votes are issued by the returning officer in front of the candidates’ election agents, who sign the seal of the postal voters ballot box, and the list of postal voters and the ballot counterfoils are also sealed. We believe that this is satisfactory.
Despatch of postal ballots
21. Regulation 9 of the 2003 Regulations currently allow the EC to prescribe the method of despatch of postal ballots. However, we believe that special procedures are required to allow for overseas postal ballots to be sent and received in time to be counted and without undue opportunity for fraud. We recommend that all overseas postal ballots must be sent through the Malaysian consulate designated by the EC for that country or territory.
22. We recommend that each returning officer should seal the postal voting envelopes intended for each consulate in a sealed packet signed by the candidates’ election agents. The EC should then send all the sealed packets intended for each consulate via diplomatic pouch. When they are received by the consulate, they should be opened, counted and despatched into the local postal system in the presence of the parties’ overseas agents.
Exercise of postal votes
23. At present, the declaration of identity by the postal voter must be witnessed by another person on Form 2, after which the voter marks his ballot paper in secret. We believe that this is satisfactory; however, if additional security is required, the Committee should consider requiring a witness to a declaration of identity to be a Malaysian consular officer or a police officer, magistrate, lawyer or commissioner for oaths in that country.
Return of overseas postal votes
24. At present, postal votes must be returned to the returning officer so that they are received no later than 5pm on polling day. We believe that in order to reduce the time that is required to transport postal ballots, and to reduce the opportunity for fraud, all overseas postal votes must be returned to the same consulate through which they were despatched.
25. Overseas postal votes should be held in clear ballot boxes sealed with the signatures of the parties’ overseas agents at the time of the despatch of the overseas postal votes. There should be at each consulate at least one ballot box for each State and one box for the Federal Territories in a parliamentary election, and one ballot box for each State election that is being held at the same time.
26. The EC should be able to designate an overseas polling day that is one or two days ahead of polling day in Malaysia, so that overseas postal votes can be counted in time for the addition of votes in the constituencies. Overseas postal votes can be returned either by post or in person to the consulate, as long as they are received by 5pm on overseas polling day.
Counting of overseas postal votes
27. In order to reduce the logistical complexity and the opportunity for fraud, we recommend that all overseas postal votes should be counted at the consulate to which they are returned. Ballot boxes should be opened after 5pm on overseas polling day, and overseas postal ballot papers should then be sorted by constituency. The verification and counting of postal votes can then take place as usual in front of the parties’ overseas counting agents.
28. The number of votes for each candidate in each constituency should be recorded on a single form for each ballot box, e.g.:
“MALAYSIAN HIGH COMMISSION, LONDON
NEGRI SEMBILAN (STATE ELECTION)
N1: BN–45, PKR–47, Ind.–2;
N2: BN–22, PAS–18, Ind.–1, spoilt–1;
N3: … etc.”
29. The statements of results from each consulate can then be faxed to the parties and to the EC, who will forward them to the relevant returning officers in time for the addition of votes.
30. Over 115 countries and territories in the world allow external voting, and two thirds of these allow external voting by all citizens. Postal voting for overseas Malaysians need not be excessively expensive: Australia manages to conduct overseas voting for A$1.2 million out of a total election expenditure of A$75 million. In the case of Malaysia, the EC already has to send overseas postal ballots to government servants and students overseas, so the additional cost of including postal ballots for other Malaysians overseas will be marginal.
31. MyOverseasVote UK welcomes the interim recommendation of the Committee that Malaysian citizens overseas should be entitled to vote as postal voters, but fears that the lack of any timeline for implementation by the EC will mean that Malaysians overseas will continue to be deprived of their right to vote at the upcoming elections. We commend the draft regulations contained in the Appendix for consideration and adoption by the Committee, and call upon the Committee to set a firm deadline for the adoption by the EC of the necessary regulations in any case of no later than the end of January 2012.