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Thread: People's Tribunal: Operations - Who manages an Election?

   
   
       
  1. #1
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    People's Tribunal: Operations - Who manages an Election?

    We have discussed the flawed Malaysian electoral system and a compliant and biased Election Commission, constrained to act at the directive of the Prime Minister as provided in the Federal Constitution. We now wish to address the issue of Operations - Who manages an Election?

    OFFICERS OF THE ELECTION COMMISSION

    The Elections Act 1958 provide for the powers and general duties of the Election Commission (Section 5) and the appointment of its officers and staff (Section 3), subject to approval of the Yang di-Pertuan Agong, who in turn is obliged to accept the advice of the Prime Minister under Article 40 of the Federal Constitution. This covers the Secretary, the State Elections Officer, the returning officer, the enforcement officer and their deputies and assistants. Similarly, the Chief Registrar of Electors, his deputy and other registrars, the adjudicating officer are subject to the same procedures (Section . In effect, all these appointments could be dictated by the Prime Minister. There is a serious problem of public confidence when every layer of the administration of an election can be decided by the Prime Minister whose election is managed by these people.

    WHAT PROTECTION DOES A VOTER AND THE CANDIDATE HAVE FROM THE EC?

    An EC officer is bound by the following Sections of the Elections Offences Act:

    4. Offences by election officers,
    5. Maintenance of secrecy at elections,
    6. Offences against this part.

    The following are provided for under Section 4:

    · An election officer is not allowed to prevent an eligible voter from voting.
    · He shall not wilfully reject a valid ballot paper.
    · He shall not wilfully accept an invalid ballot paper.

    Section 5 if properly implemented will conform with "The right to a secret ballot as a guarantee of the free expression of the will of the people is provided for under the Universal Declaration of Human Rights (194 and the International Covenant on Civil & Political Rights (1966) Article 25b."

    What if an EC officer violates these Sections? He is protected by Section 6 Offences against this Part, namely:

    · A prosecution for an offence under this Part hall not be instituted without the sanction of the Public Prosecutor.

    This restraint against punishment applies also to:


    · Section 11 Punishment and incapacities for corrupt practice,
    · Section 27 Punishment for conviction for illegal practice.


    The Public Prosecutor reports to the Attorney General. The Attorney General is housed in the Prime Minister's Department. It would appear that an offending Election Officer or a candidate can get off scot-free with the help of a friendly Public Prosecutor.

    TWEAKING THE LAWS AND REGULATIONS TO BIAS THE SYSTEM

    Vote counting:

    Election Offences Act Section 41. Rejection of ballot paper by returning officer or presiding officer to be final.
    On an election petition the decision of a returning officer or presiding officer, whether or not a ballot paper shall be rejected, under any written law relating to the election, shall not be questioned.


    Elections (Conduct of Elections) Regulations 1981 [COE]

    Regulation 6: Only 1 hour provided for submission of nomination papers. Cases reported in the past (Pensiangan 200 where candidates were prevented by the Police from entering the nomination centre in time although they were early.

    Regulation 7: Decision by Returning Officer to reject a nomination paper is final. An aggrieved candidate may seek recourse in an election petition. But the election petition rules are heavily stacked against a complainant.

    Regulation 11: Contested election -
    · campaign period set too short, preventing a candidate who does not have access to the mainstream media to reach out to the voters. In GE13, it was set at 15 days which is not enough for an overseas voter to return his ballot in time through normal courier service. Going through the EC gives rise to concerns about security as the procedures used by the EC is easily breached.

    · Advance Voting is set at least 3 days before polling. For GE13, it was 5 days. There are concerns about the security of the ballot boxes and whether indelible ink can last long enough, especially since the UNDP Procurement Guide for Post-conflict elections recommend a limit of 72 hours for the ink stain. Without the indelible ink working effectively, double voting is possible. The ink used for GE13 had too low a concentration of silver nitrate (1% or less). This was not in conformity with international guidelines which is generally from 5 to 25%. This is recognized as a safe limit for health. Tindak Malaysia has issued public notice of this guideline before the GE13 - http://bit.ly/IndelibleInk-UNDPGuide, 2nd Oct 2012.

    · Polling time of 9 hours for 700 voters is very tight, only average time of 0.77 minutes. This creates tremendous pressure on the EC staff and polling agents to rush the process thereby lowering the standards to safeguard the integrity of the vote. We believe this is by design because for Advance Voting of police personnel, they were given 11 hours to vote. The average time varied from 1.5 to 8.6 minutes. It is therefore clear that the EC recognizes that voters need more time but general voters are short-changed. Not only that, in certain remote areas in Sabah and Sarawak, polling time may close as early as 11am and quite often at 2pm. This is contrary to the principles of the Federal Constitution Thirteenth Schedule where electors are required to be given "reasonably convenient opportunities of going to the polls.."

    Regulation 13: Facilities to be provided at polling centre and station:
    · There are no clear guidelines for seating the Booth Observer. During GE13, in Subang Jaya SM SS17, the booth observer was seated 6 metres away from the EC clerk. To all intents and purposes, he is not there.
    · The polling station layout is designed to prevent a polling agent from carrying out his duties to safeguard the interests of his candidate and ensure that polling is conducted properly. He has no chance to verify the identity of the voter as he is seated about 4 metres from the polling clerk. A clerk may be reading from a genuine MyKad held by an imposter and the polling agent would not be able to check. I tried to go up to the polling clerk to check on the Advance Voters on 30th Apr 2013 at the IPD USJ 8 Subang Jaya Saluran 1. But the presiding officer refused to let me stand up. To avoid the risk of being evicted, I had to comply although I clearly knew he was violating his authority.

    Polling stations sited on first and second floors:
    Form SPR 765 Form for Declaration of Identity: to be used by handicapped voters who are unable to go up to upper floors.

    · A special form is provided for such handicapped voters. This form is designed to provide for a problem deliberately created by the EC. All polling centres located in schools have enough classrooms to house all the polling stations on the ground floor. Yet the EC chooses not to use all the ground floor classrooms. Instead they house some of the polling stations on the first and second floors which does not have access for handicapped voters. The procedures used have very little safeguards allowing for switching of ballot papers.
    · Requiring a voter to have his finger marked with indelible ink before voting causes delay to the process and creates a risk of smudging of the ballot paper. This gives room for the presiding officer to accept or reject the ballot paper.


    Worldwide, it is the norm to ink the finger after voting as this will take the inking out of the critical path and avoid the complications of smudging. At a briefing for Tindak Malaysia conducted by the EC in Putrajaya, we recommended the inking should be after voting and the polling agent should be seated behind the polling clerk. See attachment.

    Regulation 14A The electoral roll submitted on nomination day shall be final and cannot be challenged even though it may be defective. Even phantom voters can vote if their names appear on the electoral roll.




    A candidate may challenge this in an election petition but he has an insurmountable barrier - to prove that the votes of the phantom voters are enough to change the results of the poll.

    Regulation 15 (1) Admittance to polling station: Form SPR 717 issued under a Returning Officer
    An EC officer can be allowed to vote in any polling station in the Constituency even if his name does not appear in the electoral roll for that polling station using Form SPR 717 signed by the returning officer. Without an electoral roll as a safeguard, there is nothing to prevent a person from having multiple Form SPR 717 and vote in several polling stations, especially since the indelible ink is not indelible.
    Attached Files Attached Files
    py

  2. #2
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    Regulation 16: The presiding officer has authority to evict anyone from the polling station. A polling agent who challenges the presiding officer over the conduct of polling could be evicted unreasonably and there is no timely recourse for remedy.

    Regulation 17 Poll by ballot and ballot papers: There is no security to check against duplicate printing of ballot papers. The EC does not give adequate opportunities to the polling agent to inspect the ballot papers before start of polling, both in terms of quality and quantity. There could be a hidden dot.





    Form 13 for accounting of the ballot papers provides for the polling agent to countersign but he is not given an opportunity to check the ballot papers and yet is expected to verify the correctness of Form 13.

    Regulation 18 Ballot boxes: The security tape and mousetails used to secure the ballot boxes are not secure. The tape can be peeled off intact and reinstated. The mousetail has no serial number nor space for a polling agent to sign. It can be replaced easily. Without security for the ballot boxes, ballots can be replaced. This is important if:

    · the ballot boxes are shifted to a counting centre from the polling station,
    · Advance Voting ballot boxes are shifted from the police station to the Main Tally Centre for Counting,
    · Similarly for Postal Voting ballot boxes,
    · A recount sanctioned by the Election Petition judge in an election petition,
    · Security of the marked ballot papers from checking by someone in the EC as they are responsible to safeguard the ballot boxes after an election. The secrecy of the vote can be compromised.
    py

  3. #3
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    Regulation 19 Manner of voting:


    · The security documents to identify a voter is not specified in the Regulations. The EC issues a guidebook accepting a MyKad, temporary identity card, driving license with photograph, Government department authorisation card, Passport. This is contrary to the requirement during registration of an elector - only a MyKad or Passport is acceptable. This can lead to abuse as imposters can easily slip through the check with such low standards of security.
    · A polling agent seat 4 metres away cannot verify if the voter's finger has been marked with ink before. He cannot verify the face against the photo on the identity document. A polling clerk can allow any person to slip through without the polling agent being able to detect, especially given the very fast pace of voting dictated by the 0.77 minute average voting time (See MyDurianTV Videos on indelible ink and 0.77 minit.)






    Regulation 20 Declaration by voters

    Just by using Form 11, the presiding officer can allow anyone to vote even if the identity document is very flimsy. A polling agent can object but he will be over-ruled. If he tries to file an objection letter, the presiding officer can refuse to accept it as in my case for Advance Voting during GE13. In any case, because of the fast pace of voting, the polling agent can lose track of up to 5 voters if he spends time drafting the objecting letter. So he is caught in a no-win situation.


    Regulation 23 Closing of poll

    The regulation allows the last voter holding a ballot paper to complete his voting at the close of voting. There could be a situation where a voter may have his finger marked with indelible ink precisely at the closing time but he does not get to vote because he has not been issued with the ballot paper in time. The EC guidebook states that a voter inside the polling station at the close of polling can vote. This gives room for a presiding officer to use his "powers" to allow or disallow a voter to vote.


    Regulation 23A Place of counting of votes

    Usually counting is carried out in the polling station. In remote areas with small voter population, the counting may be carried out at the Main Tally Centre. If the ballot boxes are transported by speed boat or by helicopter, the candidates have no means to accompany the ballot boxes to ensure they are not switched or tampered with. This is aggravated as the security seals and tags used by the EC are not tamper-proof.


    Regulation 24 Procedure on close of poll

    Form 13 has to be completed at the close of poll to determine how many ballot papers were issued and the serial numbers involved. This has to be countersigned by the polling agents. In many instances, the presiding officer refused to extend a copy to the polling agent despite being obliged to do so as a matter of procedure. Form 13 is vital to control the ballot papers that can be accepted during counting. Without a copy of Form 13, a counting agent is unable to determine whether a ballot paper's serial number is valid or not. This allows "foreign" ballot papers to be introduced and accepted for counting.

    Regulation 25 Counting of votes by presiding officer

    · Clause (1) (b) authorises the presiding officer not to prevent any counting agent from being present during counting,

    · Clause (4) through the Third Schedule can in theory allow the presiding officer to proceed with counting even though the number of ballot papers in the ballot box exceeds the number determined by Form 13.

    When we questioned the EC in Putrajaya, the officer claimed that there was an internal Standard Operating Procedure that required the presiding officer to verify the serial numbers before counting. To date, neither we nor many presiding officers we spoke to, have seen such an SOP. We are puzzled why this should be the subject of an internal SOP and not a correction to the Third Schedule which is totally incorrect.

    · Clause (8.): The presiding officer is empowered to accept any ballot paper which was invalidated due to his staff's mistake. This sounds reasonable. But the EC has deliberately introduced procedures that creates confusion. Eg. The application of official stamp on the serration of the ballot paper instead of fully within the ballot paper as required in Form 9, gives the presiding officer a lot of leeway to accept or reject a ballot paper. There were reports of ballot paper with such "half-moon" stamps rejected while others were accepted. Likewise, there were ballot papers which were marked with the indelible ink in the candidate box due to voter ignorance. Some were accepted while in other counting stations, they were rejected.

    · Clause (10) The decision of the presiding officer, whether or not any ballot paper shall be rejected, shall be final.

    This can have an impact under the situations described in Clause ( above. Many polling agents accept this without question as they are unaware that the presiding officer is bound by the Election Offences Act Section 4 (e) and (f) in which he is not allowed to wilfully accept or reject any ballot paper without reasonable cause.

    · Clause (12) The presiding officer is required to issue a copy of "Form 14 Statement of the poll after counting the ballots" to the counting agent. This is the form used in the final tally of results. There are reports that some presiding officers refuse to do so. So far, we have not heard of any presiding officer being charged for this election offence. Without a copy of Form 14, a candidate is unable to challenge the returning officer in the Main Tally Centre should he record an incorrect result for that particular counting station.
    py

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    Elections (Conduct of Elections) Regulations [COE]

    Regulation 25A. Safe custody of election documents

    This is the most vital regulation to safeguard the security of the ballot papers and marked electoral rolls to maintain secrecy of voting in accordance with Section 5 of the Election Offences Act. But it is drafted in a manner that is very confusing. If one does not have the benefit of viewing the EC's Training Videos for the presiding officer, one cannot understand what is required. This is what it means:



    Security for the election materials is very weak.

    • The EC uses security tape that can be peeled and resealed unlike those types that is torn whenever anyone tries to peel it off.


    • The mousetail (plastic tag) does not have serial numbers and can be easily replaced undetected.


    Envelope 3 which contains the electoral roll of the presiding officer is not sealed, in violation of Regulation 24 (1)(d)(ii).

    What it means is that a person with access to the ballot papers which is sealed in the ballot box can remove it undetected and study the ballot paper marking and compare it with the electoral rolls to match a voter with his ballot paper, thus violating his rights to secrecy of voting. This situation arose because the EC refused to randomize the issue of ballot paper despite our repeated calls for this to be carried out. When Tindak Malaysia tried to teach the voter how to demand for a randomly issued paper, I was hauled up to Police Headquarters for investigation under the Penal Code Section 124C for activities detrimental to the practice parliamentary democracy.
    py

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    COE Regulation 25D. Proceedings of returning officer after return of ballot boxes, and official addition of votes.


    Clause (4A) authorises the returning officer to amend the statement of poll Form 14 if it appears to him to be in error, without the benefit of a recount. Such powers are very dangerous and can lead to abuse.

    Clause (9) empowers the returning officer to evict anyone from the Main Tally Centre. There are reports of candidates and their election agents thrown out for no apparent reason and unable to witness the tallying of the results. (Tapah - http://www.malaysiakini.com/news/229430) Recourse to election petitions is futile because the rules are so heavily stacked against an aggrieved candidate.
    py

  6. #6
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    Regulation 27A, B and C: Advance Voter

    Police and the Military Officers and spouses were previously postal voters. For GE13, it was changed to Advance Voting. Unlike Postal Voting which is covered under a separate Regulation in itself, Advance Voting has only 3 regulations. The rest of the procedures were described in a guidebook issued by the EC. This is bad practice as the guidebook does not have any Parliamentary oversight and the EC could write anything they liked.

    The EC embedded a few procedures that facilitated abuse if so desired.

    Advance voting had to be minimum 3 days before normal polling. For GE13, it was 5 days.

    The way the ballot boxes were secured after voting was weak, being kept in the police station for 5 days.


    • The candidates were not given any opportunity to guard the boxes in the police stations.
    • Even if permitted, it was taxing on the resources of the candidates to engage and pay for such security,
    • The ballot boxes seals were not tamper-proof.


    Normal voters had only 0.77 minutes to vote while the police had between 1.5 to 8.6 minutes to vote. It would have been better for voting to be done the day before polling and counting conducted immediately thereafter.
    py

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