By : JOE FERNANDEZ
IF THE 1987 Umno presidential election is taken as one yardstick, the response of the Court may not be in favour of a novel development of the law or, as some would allege, making law.
In that party election, the Court discovered that votes from 30 illegal party branches may have contributed towards Mahathir Mohamad’s narrow 43-vote victory over his challenger Tengku Razaleigh Hamzah. It was alleged that the 30 illegal branches were aligned towards Mahathir.
Even so, in a surprising ruling, Judge Harun Hashim declared the entire party unlawful. Had the Judge concluded that the illegal votes may have gone in the direction of Razaleigh, that ruling would not have arisen since the outcome was not affected!
Harun Hashim bought kamikaze arguments and denied Razaleigh
The Court did not take into consideration that the presidential election was only unlawful to the extent of the illegal votes and the party unlawful to the extent of the illegal branches. The Jury may still be out on the question of whether the Judge could have discounted the illegal votes and handed the presidential victory to Razaleigh. Many will argue that he could have but unfortunately he didn’t. The good judge has long gone to meet his maker. Dead men tell no tales.
Even if Mahathir had won by one vote, and it was determined that his victory was due to one illegal voter, the outcome had been affected. Both Mahathir and Razaleigh, the one illegal vote removed, had tied.
One mitigating circumstance against the party being declared unlawful was that it had helmed the country since independence for Malaya in 1957 and steered the birth of Malaysia in 1963.
That approach could not be misconstrued as judicial activism using the fig leaf that our system of justice is adversarial.
Alas, the Judge bought the kamikaze arguments in Court that he had no alternative but declare the entire party unlawful if the Court concluded that illegal branches had participated in the presidential elections and illegal votes had also been counted. Again, the Court is not about the truth, justice or moral values but the law, no matter how much weighted against the public interest.
Court no help in awarding victory to the real polls winners
In another case, on 8 June, 2001 Election Court Justice Muhammad Kamil Awang made a landmark decision declaring the March 13, 1999, Likas election result null and void after upholding two election petitions filed by losing PBS candidate Dr Chong En Leong and former Chief Minister Harris Salleh of Parti Bersekutu. Justice Kamil had affirmed that the Likas electoral roll was tainted with more than 5,000 phantom voters. But who obtained those votes?
Former Barisan Nasional-rotated Sabah Chief Minister Yong Teck Lee, who polled 9,110 votes against 4, 962 by Dr Chong, lost the seat. Yong had won by 4, 962 votes. Harris drew 3,576 votes.
Even if all of the Likas-resident Harris’ votes came from the illegals, a likely possibility but nevertheless strenuously denied by those in his camp, that still left over 1,424 votes from the illegals for Yong since these people wouldn’t vote for PBS, then in the Opposition.
If these 1,424 votes are discounted from Yong’s margin of victory, he still won by 3,538 votes. Only judicial activism could have saved Yong unless the ballot boxes were opened up and each voted recounted.
In a 15 June, 2001 media statement, then Dap National Chairman Lim Kit Siang lamented the subsequent disclosure that the Judge had received a telephone directive from someone at the top of the Judiciary to strike out the Likas petition without a hearing. Lim’s beef was that the Judge did not disclose the telephone call in Court.
So, not much can be placed in the case of proven electoral fraud, on the Court stripping the winner of a disputed victory and awarding it to his nearest challenger.
Never ending go back to India, China cries from Nusantara people
There should be a system in place for the Court, in case of election petitions alleging fraud, to scrutinize the ballot papers and determine who collected whose vote. That would be the most efficient way to determine polls winners instead of a re-poll which would necessitate the cleaning up of the electoral rolls, a process which has been bitterly disputed in the past.
Still, the bottomline may not even be the extent of electoral fraud.
It comes back to the system again.
The greatest fraud perpetrated against the people of Malaysia is the formation of pre-polls coalitions. These coalitions circumvent the democratic process by endorsing elite power-sharing and denying the grassroots majority meaningful participation in the electoral process. The formation of coalitions should only be allowed, by law, after the elections are over.
Coalition government need not be inevitability.
The party with the most number of seats in Parliament, for example, can share the Federal Cabinet and Government posts with other political parties without entering into coalition government.
If coalition government is the option exercise, such a coalition must disband on the eve of the next elections to ensure a free for all at the ballot box. That by itself would spell the end of political parties based on narrow considerations like race and religion.
Politics can then be fought on issues and these may be urban, suburban, rural, coastal, from the interior or the high mountain country. No longer would anyone be identified by his race or religion in politics or whether he’s an Orang Asal, recently or long arrived or the descendents of those recently arrived or long arrived.
No longer would anyone be told to “go back to India or China”, for example, if they are “not happy in Malaysia”.
No pledge from Dap not to fraudulently embrace Umno
Every election, and in the run-up to elections, the Indian community in particular are subject to all sorts of indignities, racial abuse and derogatory remarks in the struggle to confine the national cake to a smaller number of people.
The Indians are united by Hindraf Makkal Sakthi, the Chinese are united by their bank drafts, and the Malays by their overdrafts. The makkal sakthi – people power in Tamil – cries of Interlok Pariah Umno is being heard again as the seatless Indians rail against the ruling party.
The Opposition is a marriage of convenience united by Malay hatred in particular for the BN in general and Umno in particular. The marriage appears to be less unholy now than when it was first formed.
The BN in Malaya, apart from Umno, has fallen apart and will crumble under a united Opposition assault come this 13th GE but will continue in Sabah and Sarawak, mauled and bruised in the latter in particular but still taking power.
In the absence of a public pledge, it’s being speculated that the urban and Chinese-based Dap would not hesitate to abandon its Malay and Islamic partners, PKR and Pas, in the aftermath of the 13th GE and team up with Umno to share the Federal Government provided the MCA and Gerakan are removed. That would be like the Pap of Singapore fraudulently achieving by the backdoor what it failed to do in Malaysia.
People of Borneo given the short end of the stick in Malaysia
The greatest fraud perpetrated in Malaysia was to weaken the voice of the people of Borneo nations in Parliament.
The two countries, Sabah and Sarawak, have a combined 57 seats in Parliament, less than the at least one third plus one promised by the 1963 Malaysia Agreement. This is 18 less seats than they should have out of 222 seats.
To add insult to injury, many of the 57 seats are held by Malaya-based parties across the political divide, thus further weakening the voice of the people of Borneo in the Malaysian Parliament.
The Registrar of Societies (ROS) is a party to these political parties being in violation of the Malaysia Agreement. It facilitates Putrajaya ruling Sabah and Sarawak through rogue elements – Projek IC operatives, Moro National Liberation Front, Moro Islamic Liberation Front, Abu Sayyaf – local proxies (local Muslims and illegals) and their stooges (Orang Asal).
The Malaya-based parties have not even been locally-incorporated in Sabah and Sarawak to comply with at least the letter, if not the spirit, of the Malaysia Agreement.
If politics is all about the re-distribution of power and resources, the people of Borneo are being given the short end of the stick in their already disputed participation Malaysia. There could be no greater fraud than this.
Malaysians by and large worry that 'fraudulent practices' by way of the electoral rolls and at the ballot box will cheat them out of the Government they want in Putrajaya and in the states. This should not be read as having a Pakatan Rakyat (PR) Government in the Federal Administrative Centre instead of one formed by the Barisan Nasional (BN).
Fraud can work both ways although the outgoing BN, revamped from the Alliance Party in the wake of the searing Sino-Malay race riots of 13 May, 1969, has ruled the country since 1957 when the British left Malaya.
In the absence of proof in the form of the proverbial smoking gun, indefinite BN rule by itself should not be seen as having been facilitated by fraudulent electoral practices. The formation of the BN itself stretched out the welcome mat for the Alliance Party.
The system itself is at fault. The playing field is not level.
The Court should not allow the gazetting of tainted electoral rolls even if evidence of such fraud, for example Projek IC and the like, was discovered well after the public display and objection period for such rolls is over.
The delineation of constituencies is another issue since it facilitates gerrymandering. Winning by default not evidence of fraud in elections
Putrajaya, for example, is a parliamentary seat with less than 6,000 voters. There are many Putrajayas in Malaysia which are all BN territory. Indeed, it has even been estimated that with as little as 18.9 per cent of the votes cast, the BN can still obtain 112 seats in Parliament to form the Federal Government. There are 222 seats in Parliament.
Meanwhile, Opposition strongholds have anything up to 100,000 or more voters. So, BN can still lose the popular vote and form the majority in Parliament, for example. In that case, only its moral right to govern can be questioned by the Opposition and the people. The Court is not about the truth, justice or moral values. It’s about the law.
To digress a little, the Congress in India at one time, before the advent of coalition government, was able to form the Federal Government single-handedly with less than 30 per cent of the total votes cast. 18.9 per cent in Malaysia would be even more shocking!
There’s a case for limiting the number of registered voters in any parliamentary seat to 50,000, plus or minus either way, within a 10,000 range. So, Putrajaya by itself will not qualify to be a parliamentary seat.
Even so, the Opposition has not been able to get its act together in recent years until the watershed 12th General Election of 2008.
Defection of Opposition after May 13 fraud perpetrated on the people
So, the ruling party can still win by default as it has been the case in Sarawak except for one point in time in 1987 known as the Ming Court Affair. After that, the Malay-based Permas disbanded and its ally, the Parti Bansa Dayak Sarawak (PBDS) joined the state government in coalition, only to find itself deregistered several years later. That set back Opposition politics in Sarawak until 2009 when the Malaya-based Opposition, despite not being united, made a credible showing in the state election.
This time the same Opposition is more united than ever in Sarawak but it is only the parliamentary seats are at stake. Seven to eight parliamentary seats, out of the 31 at stake in Sarawak, are already in the bag for the Opposition.
It does not have any local Opposition parties to contend with apart from the mosquito Sarawak Workers Party (SWP), bankrolled curiously among others by Sarawak Chief Minister Abdul Taib Mahmud to do in a coalition partner, the rising Parti Rakyat Sarawak (PRS), the part successor party to PBDS.
The people of Sarawak appear to be willing to place Sabah opposition strongman Jeffrey Kitingan’s Borneo Agenda on the backburner for the moment as they wrestle with the Herculean task of removing the Taib Dynasty from power. They are willing to enter a temporary marriage of convenience with the Malaya-based Opposition parties for this singular purpose. The Borneo Agenda is explained as being against everything that the parti parti Malaya in Borneo stands for and their local presence.
The 10 May, 1969 General Election became an aberration when the Opposition fled to the newly step up BN to replace the Alliance Party.
Part of the blame for the political weakness of the opposition in Malaysia can be placed on the since discarded International Security Act (ISA) which hung like the proverbial Sword of Damocles over the Opposition and also struck fear in the people at large.
Majority right to rule, minority right to be heard
Mass civil disobedience was not employed by the Opposition as a weapon in their arsenal. There were no hungry stomachs to march. People still had food on the table. It’s not like in France when Marie Antoinette, the Austrian-born Queen of France during the 1789 Revolution, infamously remarked, “If the people have no bread, let them eat cake”. This was her response to news that the peasants were starving. King Louis XVI was beheaded on 21 Jan, 1793 for treason, “trying to get help from royal supporters in England, Prussia and Austria”. Marie Antoinette was beheaded on 16 October, 1793 for the same crime.
The first past the post system should be reviewed to allow for the voices of the losing voters to be heard in the legislature, through non-constituency based seats, if a party which failed to win even one seat in any legislature managed to muster a minimum five per cent of the votes cast nationwide. While the majority – as reflected in the legislature – has the right to rule, the minority i.e. the losing votes in elections, has a right to be heard. That’s true democracy!
Effecting the outcome the principle in determining election fraud
The BN, thick-skinned as they are when it comes to corruption issues, are extremely sensitive when it comes to any hints of any element of fraud in the quest for power. It’s aware that the eyes of the world are on it and besides there’s the question of the Malay maruah – self-respect – and the issue of legitimacy to consider on such issues, if not in corruption.
This maruah/legitimacy factors, the Malay Achilles Heel, has seen the BN Government setting up the long-awaited Royal Commission of Inquiry (RCI) on the extraordinary population explosion in Sabah and its reflection in the electoral rolls. The same factors, maruah and legitimacy, has seen the BN wrestling with the issues of statelessness, and the marginalisation and disenfranchisement of the Indian Nation in Malaysia, the legitimacy of Malaysia in Sabah and Sarawak, and the right of Malaysians abroad to vote.
Legitimacy by itself has wider implications, embracing security considerations, and its reflection on valuation in the economy in several areas driven by investor and consumer confidence viz. the strength of the currency, value of stocks, property prices, credit risk, credit rating and the like. When politics comes in through the door, economics will fly out the window with widespread security and other implications which will render any quest for political power either pointless or a phyric victory.
When it comes down to brass tacks, mere fraudulent practices in the GE, abominable as they are to those who claim the moral high ground, are not the main consideration in law.
No election anywhere in the world is without an element of fraud.
What’s more important to consider in the post-GE period is whether fraudulent practices in terms of vote count at the ballot box were of a magnitude which affected the outcome; what would be the response of the Court if indeed fraudulent practices had determined the outcome.
Many options for people to act against fraud in elections
The respective share of the popular vote is immaterial except for the Opposition and the people taking to the streets and demanding fresh polls, free and fair, under an Interim Government or the inclusion of the Opposition in the division of Cabinet and Government posts without resort to coalition government.
A 3rd alternative is a Revolutionary Government formed by the people. Revolutionary Government would also be the option if the people conclude that there’s no way that the BN can be dethroned through the ballot box.