Unlike South Africans and Singaporeans working in the private sector outside their country of origin, Malaysians are not able to exercise their right to vote because they are not classified as absent voters.

NONEIn making this submission in the Kuala Lumpur High Court today, lawyer Edmund Bon (left), said Malaysia is among a few Commonwealth countries that do not allow citizens abroad to vote by becoming absent voters.

"Not classifying my clients as absent voters has violated their rights under Article 8 for equality and Article 119 for the right to vote under the federal constitution," Bon said.

He is representing six Malaysians who are seeking the right to be registered as ‘absent voters’ in a landmark case.

They are Teo Hoon Seong, V Vinesh, Paramjeet Singh, Yolanda Sydney Augustin, Sim Tze Wei and Leong See See.

Yolanda, is the daughter of Stanley Augustine, the former Kuala Lumpur prosecution head. Stanley who is now in private practice, was in court to hear his daughter's application.

His daughter is a 32-year-old oncologist.

”The exclusion of the applicants as overseas residents and not being able to vote is unfair and not justified. Hence, in this court  the EC’s move in not recognising them as absent voters overseas can be challenged,” Bon said.

He asked why absent voters are limited to civil servants or security personnel and their spouses working overseas and also full time students only.

The burden was therefore on the EC to justify why government servants, full time students and army personnel could be classified as absent voters overseas but not other Malaysian residents overseas.

“The burden is discharged on the body that enacted the law (in limiting others in the judicial review application).

Discrimination against overseas voters

“Why the discrimination against my clients, as they are also contributing to Malaysia with their remittances to their families,”  he asked.

Bon said the Elections (Registration of Electors) Regulations 2002 discriminates against any Malaysian resident overseas who is not either a member of the armed forces, a civil servant or a full time student.

“This discrimination is not justified, arbitrary, unreasonable, unjust and unfair, along with being disproportionate to any plausible legislative objective.”

Bon said the court has wide powers under the Courts of Judicature Act to compel the EC to accord the applicants the right as absent or postal voters.

He pointed out that the South African constitutional court, in allowing its citizens overseas the right to vote in 2009, had made an observation that these people residing overseas have the right to vote as they contributed back to the country of origin.

Bon in his closing remarks said a democracy is sustained by free and fair elections.

“Only free and fair elections can guarantee the growth of a democratic polity. It is a cherished right of every citizen to participate in the electoral process, which places persons in seats of power and it is a universal adult suffrage.”

Lawyer Syahredzan Johan who held a watching brief for the Bar Council, also questioned the limitations imposed on the EC.

“What if we have a Malaysian working for the Israeli army and another working for Permodalan Nasional Bhd overseas?

“The person working in the Israeli army is allowed to be absent voter, while the PNB worker is not allowed to vote (because he is considered to be in the private sector).

“Furthermore, the Public Services Department also encourages our students to gain experience in working overseas, and what if they decide to come back and contribute back to the country, but they are still not allowed to exercise the right to vote when they are abroad?” Syahredzan asked.

Senior Federal Counsel Amarjeet Singh submitted that the EC has a duty to conduct elections and impose regulations, also saying that the applicants do not qualify as absent voters.

“They have not be deprived of their constitutional right to vote. They have been registered as electors (voters) and are therefore entitled to vote for the particular constituency and at the particular polling station where their names have been registered as electors.

“The EC have not denied or violated their right to vote,” he said.

Amarjeet said they could come back and fly home to vote, as a Sabahan who works in the peninsular can always come back to their state and vote.

This is because citizens who reside and work in the private sector abroad do not fall within the categories allowed by regulations of the Elections (Registration of Electors) Regulations 2002.

Justice Rohana Yusof is scheduled to deliver her decision on Friday.

Some 700,000 Malaysians residing and working overseas will be affected by the decision which could also have a huge bearing on the upcoming 13th general election.