Opening Statement by the Lead Counsel for the Legal Team
18 September 2013
The 13th Malaysian General Elections of May 5 2013 were the most hotly contested in the 50 odd-years history of this country. It was won by the Barisan Nasional (BN) by a 133 – 89 majority. However the popular vote (51%)was won by the opposition coalition – the Pakatan Rakyat. This spurred widespread disquiet among the populace. Reports of a range of manipulations emerged. They have generated animated discussions in coffee shops, hawker stalls, universities, offices and even the corridors of power.
BERSIH 2.0 – a coalition of 84 NGOs – which has been at the forefront of the fight for free and fair elections since its launch in November 2010 – took the rather bold and historic step of sponsoring a People’s Tribunal to examine the allegations and counter allegations. The Terms of Reference require not only an examination of the testimonies and evidence to verify the validity of the allegations; but more importantly whether these are systemic and germane to the electoral process. These issues are best presented in the calm and tranquil atmosphere of this makeshift ‘court-room’; so that findings and recommendations can be made by your Honours – fair of judgment free from the heat and bitterness of election contestation and the wounded pride of the protagonists.
Source of evidence & mode
We will be presenting evidence over the next 5 days from a wide variety of sources. This evidence has been secured by our legal team of some 40 lawyers. They have followed leads, interviewed witnesses, verified their stories; and the most cogent of these have been reduced into statutory declarations and written statements. Witnesses will testify; some sworn statements will be rendered in absentia – of residents of countries overseas. Experts will give their voice to the integral components of free and fair elections such as money politics, the role of the media and gerrymandering and mal-apportionment of constituencies.
3 categories of evidence
Given the time constraints we will be presenting a sampling of evidence in respect of 3 broad typologies: manipulation of the legislative framework underpinning elections; the manipulation of the vote choice made by individual voters; and the manipulation of the administrative process whereby elections are carried out. We will also have a special focus on the Election Commission, which is constitutionally entrusted with all matters relating to the conduct of the elections.
Sequence of giving evidence
We will present our evidence in a temporal flow. So we will start with matters preceding the election: manipulation of the legal infrastructure governing elections: the integrity of the electoral roll and all matters designed to ensure that when the elections arrive the stage is set for a free and fair election by a properly enfranchised citizenry. In this context we will present evidence of an analysis of the electoral roll for the presence of ‘phantom’ or ‘dubious’ voters. Key questions: were those not entitled to vote enfranchised? And those entitled, disenfranchised? We will present first hand evidence of the ‘disappearance’ of voters from the roll; and the appearance of voters who did not register. Indeed they had no inkling they were on the register! In this regard we will also refer to testimonies at the on-going Royal Commission of Inquiry on Illegal Immigrants in Sabah where revelations by officials on high suggest astounding electoral roll manipulation of incredulous proportions.
And then we have the issue of the efficacy of the ‘indelible’ ink – introduced for the first time ever at the insistence of civil society to prevent the scourge of double voting. A technical expert will guide these proceedings on this delicate issue. The expert’s interaction on this issue with the Elections Commission (EC), entrusted by the Constitution with the sacred task of conducting elections, will be presented for your Honours’ assessment: both as to the use of the ink and the role and credibility of the EC.
We will refer as well to the limitations introduced by legislative amendment to prevent a proper correction of a patently flawed electoral roll.
We will also present an expert view on the design of the electoral system as well as the practice (the management and operations) – for you to determine whether the seeds of manipulation are intrinsic to the construct of the electoral framework.
All this represents the ‘upstream’ stage of the electoral process.
Then the ‘midstream’ stage which relates to the manipulation of vote choice: that is influencing the voter in various ways that interfere with his or her free choice (‘subverting’). This can begin even before the legal underpinnings of an election are put in place, and can continue right up to the point at which ballots are cast. This is the campaign period before and after an election is announced. Evidence will be adduced on the way in which the media (the crucial informational link between the contesting parties and the electorate) behaved – for you to determine whether they acted in furtherance of promoting free and fair elections or otherwise; use of government/state funds and resources; the role of money politics; ‘dirty art’ manipulation of a racist and even seditious kind to thwart people into voting on the basis of rabid racist incitement in flagrant violation of our election laws; intimidation and even extreme violence. There will also be testimonies of vote-buying and the promise of goods and large sums of moneys including from government coffers in return for votes.
Finally the ‘downstream’ stage will see evidence presented in relation to the voting process: the (mis)custody of ballot boxes containing advanced votes – an important component which expert evidence suggests could potentially affect the outcome in some 30 Parliamentary seats and hence determine which coalition party forms the government itself; denial of forms that tabulate votes counted; the alteration of figures as to votes issued as well as counted; and even in some cases denial of the presence of polling agents.
All this will also involve an assessment of the EC: more particularly is it not just de jure but more critically de facto independent? We will present evidence of how it conducted the elections. Related issues but just as important are the delineation and apportionment of seats. And as has recently become an issue: whether aggrieved candidates are able to seek redress through an independent judicial process.
Your Honours, we will seek your guidance throughout the proceedings as to the mode of presentation of the evidence, given the large number of witnesses and documents that have emerged. But of course justice cannot be sacrificed at the altar of expediency. We undertake to adhere scrupulously to the rules of fairness reflected in the Rules of Procedure and Evidence for this Tribunal. In this context we have invited all potential parties or organisations referred to in these proceedings to attend so that your Honours will have a comprehensive balanced overview and understanding of what transpired in GE 13. We have no power to compel attendance. Nonetheless we cherish the hope that the affected and involved parties will attend so that we can all collectively – as a nation – advance democracy for us, our children and, indeed, their children to follow.
We know we will strike a chord in all of our hearts when we say: let’s right any wrong; and make what seems right beyond reproach –nay, even unassailable. And, depending on the outcome – mend a broken system, broken hopes, broken aspirations. And together strive -to borrow the lyrics of the song Man De La Mancha: ‘Beat the unbeatable foe’! Such that misgivings can never ever seriously emerge about Free and Fair Elections in this blessed country we call home.
That then is the sacred and lofty mission that we – in the name of the People – entrust to this People’s Tribunal.
With your leave Your Honours, I call my first witness to the stand.
Gurdial Singh Nijar, Professor
Legal Team, People’s Tribunal GE 13, 18 September 2013
BN 47%`of votes got 60% of seats; PR 51% of votes got 40% of seats.