Consider a football match, of two halves of 45 minutes playing time. At the end of the second half, the referee suddenly states that there is change in the rules, and that there will now be a third half of 45 minutes in the match.

This is totally unfair and unjust not only for the players, but also for the spectatorsand no one should have that kind of power to be able to change the rules of the game once the game has started, or almost over. In a football game, if such a thing happens, the players (and possibly the fans) may run amok and the referee may most likely need the FRU and the water cannons to get out unscathed.

Well, outrageous as it may seem to change rules in the middle of the game, but that is exactly what the Election Commission (EC) did in the 11th Malaysian general election, At about 5pm, the time that voting is to end, the EC suddenly extended the closing time of the polls from 5pm to 7pm.

This extension of time was apparently communicated verbally to the State Election Officer, who thereafter communicated this change to the different election officers in-charge of the various constituencies, who then informed the heads of the various polling centres via telephone. Chaos and confusion followed. The various political parties and/or the candidates were not informed of this EC decision.

In some polling centres and/or rooms, the ballot boxes were already in the process of being sealed and/or were already sealed when this 'unexpected' (and I believe, unprecedented) directions came from the EC.

At about 6pm (or some think it was about 5.30pm) a press conference was called by the EC to announce that the polling times have been extended from 5pm to 7pm, and that the voting is Sungai Lembing was called off, and will be carried out the following week. No reasons were given according to those at the press conference.

The question that we now have to ask is whether that act of the EC in extending the time for polling was valid and/or legal. Did the EC have the authority to do what it did at about 5pm?

The second question to ask was whether that act of extension of time for polling was fair and just for the registered voters in the said constituency?

Is extension valid or fair?

The Elections (Conduct of Elections) Regulations 1981 lays down the procedure on how an election is to be conducted. Regulation 11, which deals with contested elections, clearly states that after nominations, the returning officer is to submit the details of the competing candidates to the State Election Officer, who thereafter '..shall cause to be published in the Gazette and also in such manner as he thinks fit a notice as set out in Form 8 in the First Schedule specifying (b) the date on which the poll will be taken(d) the situation of the polling station or polling stations for each of the polling districts for that constituency and the hours between which each polling station will be open..." (Reg. 11(5) )

Regulation 24A provides the options available to the Election Commission in an election when ballot boxes are tampered with or goes missing, etc, or in the event that by reason of 'any error, irregularity or defect in procedure as is likely to affect the validity of the poll occurs at a polling station' , then the Election Commission has the authority to (a) declare a poll void and call for a fresh election - in which case "cause a notice of such declaration and the day and hours so appointed and fixed to b e published in the Gazette; and.." and the said notice must also be further "published in the constituency in such places and in such manner as he may deem necessary", OR {b) if satisfied that the result of a fresh poll at that polling station will not, in any way, affect the result of the election, issue such directions to the returning officer as the Election Commission deems proper for the further conduct and completion of the election"

Now the reason for the confusion in some (not all) of the constituencies in Selangor was the problem arising from the existence of different electoral rolls, registered voters finding their names not listed, etc and I wonder how such a serious matter could be considered as something that "will not, in any way, effect the result of the election".

Surely the electoral roll is a very essential aspect of the elections - i.e. the electoral roll was something that warranted a fresh poll, as was done for Sungai Lembing, not a mere extension of time. The correct roll had to be determined, and copies of these rolls must be made available to the candidates and their polling agents.

The missing names and the numbers that were affected, which were not few (based on the report on TV3) was not a matter so small to be able to be remedied by adding two hours. That was the kind of problem that should have led to the EC calling for a fresh polls. There may have been other problems too.

Looking at the regulations again, the important matters for an election that need to be gazetted and published by notices are the names of candidates, the parties they represent, the whereabouts of the polling centres, and 'the day and hours so appointed and fixed'.

It must be noted that 'hours' is one of these important matters, and as such it is not something that can be arbitrarily extended just before closing time (or even after that) The hours is something that was already gazetted and published by notice as required by law. Even the publication of the extension of hours by electronic media at the eleventh (or was it past the twelfth hour) is insufficient especially when the law talks about gazette requirements and the need for placement of such notices in public places.

Here we are talking about a notice that need to be given to the registered voters in the constituency, and as such this notice must be reasonable, and must be given at a reasonable time before the commencement of polling, not after polling has commenced.

The EC, as such, I believe has overstepped their boundaries and given powers, and has definitely not acted reasonably given the fact that we are dealing with the most fundamental aspect of a democracy - being, the day and time when the people chose their representatives to Parliament and/or the State Legislative Assemblies for the next 4-5 years. This is the time when the people chose the persons who will ultimately govern the state of Selangor.

This is the general election, and not a football game, where even in a football game, the referee will not be able to get away with an extension of time near the end of the game. What was this extension of two hours - surely not 'injury time' like in a football game.

Voters feel cheated

Even in a football game, if an additional half is added, the players are all on the field, and the spectators are on the stand or before their television sets at home, and all interested in the game would be aware of the additional third half that the players have to play.

But in the case of this general elections, the decision of the EC to extend two hours for polling in Selangor was not brought to the notice of all the voters in a particular constituency. Noting that the voter turn out was only about 70 - 75% on the average, there were still many who did not vote, who may have made it to the polling centres, if only they would have known of the extended time.

For example, taking the case of P.106 Petaling Jaya Utara, where the total number of voters is 75,935, and the voter turnout was about 68.56%. If 20% more of the voters did turn up between 5pm and 7pm, had they knew, that would be 15,187 voters more, and considering that the candidate who won did so by a majority of 15,043 only, that 20% could have changed the results.

Now, as a registered voter, I am disturbed by the fact that people were allowed to vote after the advertised closing time at 5pm. I feel cheated.

Now, if I were a registered voter, who was attending the 5.30pm evening service in a church in Petaling Jaya, having just come back from a holiday with my family feeling sad that I was too late to exercise my right to vote, I would be most sad to know later that the EC had extended polling time until 7pm, and that I could have voted if only I had due notice.

From a perspective of fairness, I would say that what the EC did with regard to Selangor was not fair. Notice of the extension of polling times was given to only some, who were in front of the television and/or who were informed by other means.

Many would have found out about the extension of time only too late - from the nightly TV news or the newspaper the following day. What happened is unjust to the voters? It is not right to have the extra time after 5pm?

Fresh polls for Selangor

If there was no extension, there may have been no change in the outcome. Even if the polling hours were extended for a further 10 hours, and everyone who were registered as voters were aware of, the outcome could still be the samebut that is not the issue. The issue is that the decision to extend the polling hours was wrong, and this has caused the general election as far as Selangor is concerned to be tainted.

We can all pretend that it did not happen... but that would be wrong, for deep in our hearts and minds we will not be able to look at our elected reps, as duly elected in a fair and proper election - but as representatives elected through a tainted election.

What can be done now? Maybe the EC can erase the taint by declaring the elections in Selangor as null and void, and call for fresh polls. The outcome may likely be the same - but it's the fair and just handling of the election that counts.

Maybe the courts can on its own motion call up and review the decision of the EC, and put all doubts to rest about the validity of the act of extending time. Maybe a registered voter in Selangor could bring the matter to courts, and apply for a judicial review of that decision.

Something must be done to remove the taint and the best, I believe, is the calling of fresh polls for Selangor.

CHARLES HECTOR is a human rights activist and a lawyer.