When Jeyakumar Devaraj's election petition against MIC president S Samy Vellu was dismissed o­n preliminary objections by election judge Wan Adnan (Taiping) in July 2000, party workers and supporters opted for a public inquiry under the Election (Registration of Electors) Regulations 1971. There is no report of the election court case as there was no written judgment.

Devaraj ran under a DAP ticket in the Sungai Siput parliamentary constituency (P 055) in November 1999 as his party, Parti Sosialis Rakyat (PSM) was denied registration by the Registrar of Societies in January1999 o­n grounds of "national security".

A closer scrutiny of that decision apparently equates the requirement that PSM has to have seven state branches as the "national security" ground.

The appeal to the home minister (as required under the Societies Act) in February1999 failed. High Court judge Abdul Hamid Said (Kuala Lumpur) upheld the minister's decision in January this year. PSM's case is up o­n appeal.

In his affidavit to his election petition case, Devaraj said the respondent or his agents, had "over a number of years knowingly made false statements o­n or in connection with the applications (to the electoral roll) to place voters o­n the register of electors so as to facilitate and enable voters to vote when such electors were neither residents nor entitled to vote" in that constituency.

Objections filed

Concerned Sg Siput voters filed objections to the electoral roll for the constituency when it was opened for inspection by the Election Commission (EC) in August 2000. The 1971 Regulations allow a voter registered in a particular constituency to file objections against the inclusion of persons o­n the roll who are not residents.

Following the objections filed, the EC held a public inquiry from Oct 12 to17 and then from Nov 4 to 6 in 2000. There were 339 objections filed and heard and out of that, 330 voters were deemed non-residents in the Sg Siput roll.

One wonders what will happen if more concerned voters had filed objections. (See Devaraj, lessons from Sg Siput in the book, Democracy in Malaysia: Discourses and Practices by Francis Loh and Khoo Boo Teik).

Prior to this, Devaraj's polling agents had filed a total of 100 objections with the returning officer o­n polling day in November 1999 of suspected illegal voters. PSM party workers also compiled a memorandum in January 2000 in relation to some 1,000 suspected illegal voters' names (including dead voters) o­n the roll for the EC.

It is not known what actions have been taken by the EC in relation to the 100 official objections filed with the returning officer nor allegations in the memorandum.

Under the present law, a person is entitled to vote at a parliamentary or state election but that voter is not allowed to be registered in more than o­ne constituency (Election Act and the 1971 Regulations).

The EC officer registers a "qualified" voter for a parliamentary or state election. In making the judgment as to whether a voter is so qualified, the EC officer may require "such further information from the applicant and may make such further enquiry as he may deem necessary" under the 1971 Regulations. There are no changes to this law in 2002.

As a matter of practice, the EC officer refers to the applicant's identity card or a temporary identity card issued by the National Registration Department. A voter votes in the constituency where his identity card address is.

This address is presumed as the address of residence. In other words, the voter votes in the constituency where he or she resides.

Bussing-in voters

This gives the understanding that if a voter is actually residing elsewhere but 'bussed-in' to a constituency where he/she has an identity card residence, the vote is not illegal. This 'legality' does not take into account the resources of a rich political party or candidate, who may turn the numbers around by bussing-in such voters.

It might be noted that the 2002 amendments have increased the allowable election expenses of a candidate at RM200,000 from RM50,000 for a parliamentary seat and RM100,000 from RM30,000 for a state seat (Election Offences Act).

There is however no law o­n the election expenses allowed for a political party to-date.

Opposition parties in the debate o­n the electoral law amendments last year, allege that they have raised the concerns of party spending (as opposed to candidate spending) and claim the EC has ignored this. There is nothing in the 2002 amendments to include this concern o­n party spending.

The understanding 'that voting is legal where o­ne resides' does not also take into consideration the dilemma in Sg Siput as affirmed by Devaraj in his election petition case; that of registration of voters who are actually residing outside of the constituency and are bussed-in o­nly o­n polling day.

There is nothing in the present law and there are no amendments in 2002 to address this type of 'grey area'.

A 'grey area' has to resort to the courts for adjudication That opportunity was missed in Devaraj's case when his petition was struck out before the merits of the case could be heard.

Pertinent questions

Pertinent questions o­n law may be posed here. Should the law deal with technicalities or should it be also be concerned with manipulation and abuse?

Does this type of situation not affect the management and conduct of the elections of which the EC is responsible for as the custodian of a free and fair process? Should not principles of justice and fair-play also be the legitimate concerns of law?

There is an argument that 'imported' voters or 'wrongly registered' voters remain legal voters (or not 'phantoms'- another contentious term) as they are o­n the roll.

This view does not appear to consider the possibility of manipulation of the present legal requirements (voting by residence) in order to avert a level-playing field, thus affecting the management and conduct of a free and fair election.

Devaraj further affirms in his affidavit that the conduct and practices complained of, disregarded "the free exercise of the franchise of the legitimate and registered voters...thereby violating the entire electoral process."

Tainted rolls

The situation in the infamous 'illegal electoral roll' case in Likas (2001) was a little different, Likas was premised o­n allegations of non-citizens and voters with fake identity cards being o­n the roll and the failure of the EC to hold an inquiry to objections before it certified the roll in 1998 for the 1999 general elections. There were objections raised o­n 4,585 names o­n the roll.

Election judge Muhammad Kamil ruled in Likas that the illegal electoral roll is a matter which affects the management of the election and that renders the election void irrespective of whether the irregularities complained of had affected the election result. By the time the election court heard the Likas case, the EC had cleared some 19,900 names o­n the certified 1998 Likas roll.

Devaraj estimates that there are some 5,500 illegal voters (non-residents and deceased voters) o­n the 1999 Sg Siput roll. (Lessons from Sg Siput).

The returned candidate, Samy Vellu had a majority of 5,259 votes in the three-cornered fight for Sg Siput in 1999.

If we were to take the rationale of the Likas case, a petitioner need o­nly to prove a tainted roll (for an election to be declared void) and need not prove that the irregularities affected the election result.

Investigation methods

The estimated figure of 5,500 illegal voters in the Sg Siput roll was based o­n several investigation methods carried out by PSM party workers and supporters.

Volunteers compiled a list of suspected non-resident voters from complaints of resident voters and non-resident voters who found themselves "transferred" o­n the Sg Siput roll.

The team knew of irregularities o­nly o­n nomination day when residents volunteered information. Resident voters also informed the team of voter information slips of persons dead or unknown to them, sent to their homes. This is a very slow process and by polling day o­n Nov 29, 1999 o­nly 300 suspected 'phantoms' (dead, non-resident voters) were known.

Post election, PSM campaign workers discovered that the CD obtained from the EC could be used to generate lists of voters by housing estates.

These lists were then analysed by using Microsoft Access to rearrange the voters by house numbers, by dates of registration and other 'fields".

Within three weeks, campaign workers amassed interesting data. For instance, house No 274 in o­ne housing area owned by L, the chairperson of an MIC branch had 18 registered voters, most of whom were registered in 1998.

Another house owned by the secretary to Samy Vellu had 16 registered voters. There were follow- ups by discreet inquiries. The team found for instance that 50 percent of the 614 voters registered in o­ne area were non-residents. (Lessons from Sg Siput).

It was recently reported that the EC is no longer releasing CDs of the roll for sale to the public.

PAS phantoms

After the Anak Bukit and Pendang by-elections last year, both the Barisan Nasional and the opposition accused each other for bussing-in phantoms and 'wrongly-transferring' voters o­n the roll (the so-called, 'imported voters').

On Sept 1 last year, Prime Minister Dr Mahathir Mohamad was reported as accusing PAS of manipulating the Anak Bukit roll.

He said that there were 500 'PAS phantoms' from Kedah, Terengganu, Negeri Sembilan, Johor , Sabah and Sarawak. He claimed that these names were detected in four of the 14 ballot boxes for Anak Bukit.

He further alleged that some 1,359 Umno supporters were unable to vote in Pendang as their names had been removed. There was no indication of the investigation method used for detection of these irregularities.

PAS agreed that the roll was "contaminated". However, it insisted that it was not in a position to manipulate the roll:

"BN not o­nly has power over the Election Commission, but also the mechanism to transfer or re-register voters' names to the selected constituencies or change the stated polling centres."

In a response to these criticisms of the roll and the EC, its chairperson Abdul Rashid Abdul Rahman said on Sept 3 last year that the commission had its job made easy when no o­ne complained about the roll before certification or before an election.

In Likas, the EC did not follow-up official objections to the roll before certification.

Abdul Rashid insisted that voters o­n the roll indicate eligibility to vote and they are legitimate voters. He entertained this view even when he knew of the activities of a certain political party in 'importing' voters in the four states of Terengganu, Kelantan, Pahang and Kedah.

We need to know if the EC actually cleans up the roll o­n their own initiative in these instances or waits for an official objection under the 1971 Regulations.

Educate voters

Abdul Rashid did say to the press that complaints would be investigated. It would hold the EC in good stead if it actually educates voters o­n how to file complaints, objections under the 1971 Regulations and objections o­n polling day and periodically gives press conferences to advise the outcome.

In the Sg Siput case, Devaraj said (in his affidavit) that he knew of the non-resident voters o­n the roll o­nly o­n nomination day in1999, that is after certification of the roll when voters made complaints to party workers.

He did lodge police reports o­n this and made complaints to the EC. To reiterate, there is no information o­n follow-ups by the police nor the EC o­n the 100 official objections made o­n polling day to the returning officer.

This compelled supporters to file objections under the 1971 Regulations.

Devaraj also alleged that the transfer of non-resident voters went o­n for at least three general elections (the period surveyed by party workers). This is very distressing. It raises questions as to how this can be done without detection by the EC.

Several further questions continue to plague us into the next general elections.

If there are no objections until certification because the matter is known o­nly after certification (Sg Siput case), who checks the EC whose duty is to maintain a clean roll? Who minds the
electoral roll?

Will that be the concerned voter-objector under the 1971 Regulations, political parties/candidates via an election petition, the EC (on their own volition or upon objections) or the election court (whether this has been ousted by the new Section 9A of the Election Act)?

Money politics

Some of us might be persuaded to think through these questions if we are not already 'disenfranchised' by the whole discussion.

As for the ordinary voter, Parliament had in 2002, increased the compensation ceiling to RM1000 if the objection (to the roll) is found by the EC to be unreasonable ( Section15 Election Act).

We might note that we do not even have minimum wage for plantation workers, with the government recommendation standing at o­nly RM350.

We might also note that to file an election petition in the next general election, the petitioner has to pay an increased payment of security for costs at RM10,000 under the new law (Election Petition Rules).

There is the new ceiling of deposits for candidates under the Election Act (RM20,000 parliament seat, RM10,000 state seat) and the "removal of campaign materials" deposit to the EC under the Election Offences Act (RM10,000 parliament, RM5,000 state seat).

These "money politics" should not o­nly concern candidates and political parties but the ordinary voter whose access to the vote (and electoral democracy) is affected by who (and which rich person/party) gets to run.