Memorandum to His Majesty Yang DiPertuan Agong, 2007

10 November 2007

Memorandum to:

DYMM Seri Paduka Baginda Yang DiPertuan Agong Al-Wathiqu Billah Tuanku Mizan Zainal Abidin Ibni Al-Marhum Sultan Mahmud Al-Muktafi Billah Shah

From: Coalition for Clean and Fair Elections (BERSIH):

1. BERSIH is a coalition comprising civil society organisations and political parties with the objective of campaigning for clean and fair elections in Malaysia.

2. Only when elections are clean and fair, can citizens be real masters of their own destiny and expect holders of public office to act accountably and effectively. As long as citizens do not have the power to ‘throw the rascals out’, the hope for rule of law, human rights protection, good governance and sustainable development will be at the mercy of self-interested politicians. A real prospect of changing the government of the day is the key check and balance against abuses of power.

3. Unfortunately, 49 years after Independence and 43 years after the establishment of Malaysia, the country has failed to establish a free and fair electoral process. Not only have civil society, political parties and international observers come to this conclusion, it was also admitted by the Chairman of the Election Commission himself, Tan Sri Abdul Rashid Abdul Rahman. After the last general elections in March 2004 which was marred by irregularities and controversies at an unprecedented degree, even he found it necessary to agree with the public clamour for an independent inquiry. Regrettably, the independent inquiry was never carried out.

4. This flawed electoral process raises questions about the legitimacy of the state. Its continuity will not bode well for our nation’s future and will harm the legitimacy of the political system, as demonstrated by developments in Thailand, the Philippines and Taiwan. BERSIH therefore feels that all Malaysians must join forces to push for a thorough reform of the electoral process. We therefore propose long-run reform agenda and three immediate working goals.

5. In the long run which will go beyond the next election, BERSIH believes that these eight aspects must be thoroughly reviewed and reformed:

A. Electoral system

i. The need to correct the incredibly high disproportionality in federal and state elections where 64% of votes could translate into 91% of seats for the ruling party, due to the nature of the so-called First-Past-The-Post system and the manipulations through mal-apportionment and gerrymandering of electoral constituencies.

ii. The need to introduce party list representation in the electoral system which requires the parties to nominate sufficient candidates from discriminated groups and, as a temporary measure, a minimum 30% of women in their nominations for every legislative body.

iii. The need to re-introduce elections for local authorities at city, municipal, district and village levels with an electoral system which is free and fair, and enables Malaysians to participate actively.

B. Electoral Administration

i. The need to reform the current Election Commission which has failed to act as an independent institution by moving in the direction of a structure with multi-party representatives, as introduced in many democratizing countries.

ii. Legal provision for the rights of international and domestic observers.

C. Party and Candidate Nomination – that these flaws must be corrected:

i. The discretionary power vested with the Registrar of Societies (ROS) that results in arbitrary decisions on party registration, as shown for example in the cases of Parti Sosialis Malaysia (PSM) and the Malaysian Dayak Congress (MDC);

ii. The partisan and arbitrary decisions by Returning Officers that led to unfair disqualification of opposition candidates;

iii. The controversial post-nomination exit clause for candidates which led to alleged briberies and controversial walkovers.

iv. The arguably highest election deposit in the world which effectively obstructs the participation of resource-poor Malaysians including women and other marginalized groups.

D. Campaigning – legal provisions for the following:

i. A mandatory campaign period substantially longer than the meaningless 8 days in the last election;

ii. Real exercise of the constitutionally enshrined freedoms of expression and of assembly;

iii. Effective governance and public transparency of campaign finance to eliminate corrupt practices.

iv. State finance to parties for compulsory capacity building for women candidates and marginal groups and gender sensitivity training.

E. Media

i. Dismantling of the present laws which result in the monopoly of print and broadcasting media by Barisan Nasional proxies.

ii. Legal provision for free access to state TV and radio and fair (free or paid) access to private media by all political parties.

iii. Legal provision for the right of reply to accusations and criticism in media for all political parties and candidates.

iv. State to allocate monies for training for journalists from print, electronic and Internet media in elections coverage.

F. Caretaker Government

i. That the outgoing government should be prohibited from making any substantial policy or development decisions once Parliament and/or the State legislatures are dissolved.

ii. That the misuse of state resources and apparatus for electioneering and partisan purposes should be criminalized.

iii. That the preparation and revision of the electoral roll should be full transparent and subject to judicial review

G. Electoral Roll

i. That the electoral roll should be updated and accurate to prevent (i) exclusion and involuntary transfer of genuine voters, and (ii) impersonation and multiple voting by ‘phantom voters’.

ii. That all eligible citizens should automatically be registered as voters.

H. Voting

i. The implementation of indelible ink to prevent multiple voting;

ii. The abolishment of postal voting except for diplomats and overseas voters as accountability and secrecy are heavily undermined in current practices.

6. For the immediate short-term, BERSIH calls upon the Chairman and Secretary of the Election Commission, Tan Sri Abdul Rashid Abdul Rahman and Datuk Kamaruzaman Mohd Noor to implement the following four specific reforms concerning the electoral roll and polling as the first steps towards a free and fair election:

  1. The use of indelible ink (as is done in Indonesia and India) to prevent multiple voting;
  2. The abolition of postal votes except for diplomats and overseas voters;
  3. A complete revision of the electoral roll to ensure that the existing irregularities are removed and a roll with full integrity is in place.
  4. All contesting parties should enjoy fair access to state-owned media especially television and radio.

Unfortunately, the Election Commission has so far agreed to just one of BERSIH’s demands, which is the use of indelible ink.

7. As part of its awareness campaign, BERSIH held a forum in Batu Burok, Terengganu. Tragedy struck when the police opened fire at members of the audience. In fact, BERSIH was accused of rioting. An independent inquiry was not carried out by the responsible parties.

8. We appeal to Your Majesty to:

  • Articulate the people’s desire for electoral reform, including the establishment of a Royal Commission to review and overhaul the electoral process.
  • Use Your Majesty’s power under Section 40(2) of the Federal Constitutiton to overrule any proposal to dissolve Parliament as long as these four demands are not met.

* The original document in Malay: http://bm.bersih.org/?page_id=392