The People's Tribunal established by the Coalition for Clean and Free Elections (Bersih) has suggested that a new and independent federal authority be set up to handle redelineation exercises for election constituencies.

This is to overcome the issue of gerrymandering and malapportionment of constituencies that have been linked to the Election Commission (EC), which is widely seen to be partisan to the ruling government.

The tribunal, which examined the 13th general election, released its findings and proposals today, stating that the 13th general election held on May 5 last year had fallen short of every aspect of democracy and violated the standards of free and fair elections.

Tribunal chairperson Professor Yash Pal Ghai (right), of Kenya, said in the panel's view, there were multiple failures in the way GE13 was conducted, for the panel found every tenet for a fair election to have been violated at some place and at some time.

"Though the general election may have been 'free' in a rather narrow sense, that those who were registered and wished to vote were not hindered from doing so on polling day, there were many breaches of laws and disregard for procedures to bring us to conclude the election was not free and fair," Yash Pal said.

He pointed to instances of registered voters not being allowed to vote upon discovery that somebody else had voted for them, or citizens who were not registered voters finding their names registered and votes cast  in their names as such instances.

To questions from the press on how to ensure that a separate body handling constituency delineation could be independent, fellow panel member Professor Ramlan Surbukti, a former deputy chairperson of the Indonesian Election Commission, shared his republic's experience.

Ramlan said the candidates appointed to the Indonesian commission are selected based on their independence. They do not belong to any political party.

The criteria of the candidates selected are based on their experience, personal integrity, competence and independence. The candidates will also undergo psychology tests, interviews and election procedure competency tests before being selected.

“In the end, the Indonesian Parliament will choose the final seven of them to be members of the Indonesian Election Commission. Possibly, the new commission proposed for Malaysia could be done in that way,” Ramlan said.

Besides Yash Pal and Ramlan, the other members of the tribunal are Malaysians - former diplomat Azzat Kamaluddin (right), Universiti Malaya Economics and Administration Professor Mavis Puthucheary and Council of Churches Malaysia  general secretary Herman Shastri.

The EC members are appointed by the Yang di-Pertuan Agong after consultation with the Rulers Council. The names are provided by the prime minister.

A Boundaries Commission, as suggested by the tribunal to handle redelineation exercises, has been implemented in several countries, including New Zealand, Northern Ireland and the United Kingdom.

Challenge in court being considered

Bersih chairperson Maria Chin Abdullah (right) also said the coalition is considering mounting a constitutional challenge in court on Section 9A of the Election Act and Article 46 of the Federal Constitution on the powers of the EC in relation to election constituency redelineation.

Section 9A bars the citizens from challenging the electoral roll, while Article 46 stipulates the number of elected representatives in the Dewan Rakyat, where the numbers can change upon the redelineation exercise carried out by the EC, followed by a constitutional amendment in Parliament.

“The findings of the People's Tribunal have vindicated what we have said all along - that the election process in Malaysia is not truly clean and fair,” Maria said, adding that people should act now to make their voices heard.

Former Bersih co-chairperson, Ambiga Sreenevasan, indicated during the tabling of the tribunal findings that she has been tasked to look into mounting the constitutional challenge, especially on Section 9A and on the redelineation.

“Bersih has asked me to look at ways to stop the redelineation process until they clean up the electoral roll. However, the EC seems hell bent on going through with this. Why will not the EC hear, us the people?” Ambiga asked

“What does that tell you about the EC. If it does not listen, we will try and stop the redelineation process. It is up to us to make our voices be heard louder,” she said.

This position was agreed by the panel members, who said the EC should be representing the people, not the political parties or government.

Other findings and recommendations

Besides the recommendation to form a separate entity to performing the constituency redelineation exercise, the other recommendations and findings of the People's Tribunal include:
  • Lowering the age eligibility to vote from 21 to 18 years;
     
  • Treating residents overseas equally, regardless of where they live, to allow them to cast their votes;
     
  • The present redelineation benefits the BN, compared with the opposition, to the ratio of 1.6 for BN and 1 for Pakatan;
     
  • The setting-up of a Boundaries Commission will strengthen the integrity of the election and avoid over-burdening the EC;
     
  • Although the tribunal did not find cases of foreigners being declared as voters, it views the matter with suspicion and speculation following the findings of the Sabah Royal Commission of Inquiry;
     
  • As a result of this, the electoral roll has to be regularly and scrupulously checked;
     
  • The present laws (Section 9A particularly) should be overhauled to ensure there is adequate opportunity for the electoral roll to be challenged;
     
  • The principle of access to the media and media's obligation to provide a fair presentation of the policies of all parties and candidates must be respected;
     
  • Attempts or incidentss of bribery should be tackled through public education and strict enforcement; and
     
  • The EC must be kept independent, in its method of appointment,  operation and mindset.