Monday, March 07, 2011

Making the Malaysian Election Commission more independent and transparent


a) An more independent Election Commission

Composition : - a chairman, a deputy chairman and five other members

The Election Commission shall be appointed by the Yang di-Pertuan Agong after consultation with the Conference of Rulers, and shall consist of a chairman, a deputy chairman and five other members. (Art 114(1), Federal Constitution)

To protect their independence

* There is security of tenure until age of retirement, and early removal is difficult

A member of the Election Commission shall cease to hold office on attaining the age of sixty-six years or on becoming disqualified under Clause (4) and may at any time resign his office by writing under his hand addressed to the Yang di-Pertuan Agong, but shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court. (Art 114(3), Federal Constitution)

* There is security of salary - paid from the consolidated funds 

Parliament shall by law provide for the remuneration of members of the Election Commission, and the remuneration so provided shall be charged on the Consolidated Fund. (Art 114(5), Federal Constitution)

What about reasons for removal of members of the Election Commission

(4) Notwithstanding anything in Clause (3), the Yang di-Pertuan Agong shall by order remove from office any member of the Election Commission if such member -
(a) is an undischarged bankrupt; or
(b) engages in any paid office or employment outside the duties of this office; or
(c) is a member of either House of Parliament or of the Legislative Assembly of a State.
(4A) In addition to any disqualification provided under Clause (4), the chairman of the Election Commission shall be disqualified from holding such office if after three months of his appointment to such office or at any time thereafter he is or becomes a member of any board of directors or board of management, or an officer of employee, or engages in the affairs or business, of any organization or body, whether corporate or otherwise, or of any commercial, industrial or other undertaking, whether or not he receives any remuneration, reward, profit or benefit from it:

Provided that such disqualification shall not apply where such organisation or body carries out any welfare or voluntary work or objective beneficial to the community or any part thereof, or any other work or objective of a charitable or social nature, and the member does not receive any remuneration, reward, profit or benefit from it. (Art 114(4 & 4A), Federal Constitution)
Maybe, what we need is an amendment so that Art 114(4A) not just apply to the Chairman of the Election Commission but is extended to all members of the Election Commission.

Maybe, it be best that the proviso in Art 114(4A) is removed and there be no exceptions. Why? Because, many such 'organisation or body carries out any welfare or voluntary work or objective beneficial to the community or any part thereof' are politically affliated, and/or may have members of political parties also sitting in some of these boards and committees...maybe participation in activities as a volunteer may be permissible, but not the sitting in the Board, Committees and/or even receiving any awards, etc

We really should insist that, like Judges, members of an independent Election Commission should refrain from socializing with person/s from political parties, and/or the Government.

Election Commission Act 1957( revised 1970)

1)  Communications within the Election Commission may be kept 'confidential' but certainly not any other communications, but even then it should be revealed if the court so orders... [CCTV recordings, etc...].Now, the current law ousts the courts - giving only the Yang Di-Pertuan Agung (the King) the power to order disclosure. I believe that maybe this power should practically be given to our courts and Judges, for after all Judges are appointed by the King. If this is done, then there will be clarity in terms of procedure...and the King's power could be best exercised through the King's Judges at the High Court.

2)  An independent Election Commission should really not be having 'secret' communications with the government of the day, and/or any Minister - because they are at the end of the day from certain political parties, irrespective of the fact that at the material time they may be Government and/or some Minister, and if they do so, then there must be transparency and accountability. What was the nature and content of the said communication must be revealed? 

In fact, it be best that all such conversation always be recorded - so that, in the event that there is allegations... then this could be revealed ...even if it is for the courts to make an assessment as to whether it should  remain 'confidential' or not.

5.  Certain communications to be privileged.
No person shall in any legal proceedings be permitted or compelled to produce or disclose any communication written or oral which has taken place between the Election Commission or any member of the Commission and the Government or any Minister or public officer or any communication between members of the Election Commission in exercise of or in connection with the exercise of the functions of the Commission unless the Yang di-Pertuan Agong shall in writing consent to such production or disclosure.
Therefore, this section 5 need  to be repealed - if not amended.

People should be encouraged to provide information to the Election Commission, and this should be all information that they have personal knowledge of, information that they heard about, etc - There should be no obligation placed on the informant to verify whether it is true or false... On receipt of the said information, the duty of the Election Commission is to investigate the complaint. Hence, sec.8 of Election Commission Act need to be repealed. (Or maybe amended, to clearly encourage the public to come forward with information ...not the other way around.)

8.  Giving false information to Commission.
Any person who, in connection with the exercise by the Election Commission of any of its functions, wilfully gives to the Commission or to any member thereof or to any person or body of persons appointed by the Commission to assist in the exercise of its functions any information which is false or misleading in any material particular shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding two years or to both.

* There must be clear protection given to the complainant, i.e. from civil or criminal liability, including any other forms of discrimination.

* There must be an obligation placed on the Election Commission to also keep informed the complainant as to what is happening to the complaint, the result of their investigations, etc - People need to know that their complaints are taken seriously - and not just 'put aside'. 

* There must be clear procedures set out with regard to how complaints received are dealt with, investigation procedure (will EC meet with the complainants and take a more detailed statement, get other evidence, etc..., , will there be some other follow-up investigations, Will there be a final conclusion made by the EC with regard the complaint? Will the complainant be informed? Is there a right for a Judicial  Review to the courts?) The voting may be over - but still persons who did wrong can be penalized for an Election Offence. 

1 comment:

Foo said...

That MEC is neither transparent nor independent is clear to anyone who cares to see, but what has been done? The occasional memo and complaints in the press will move the bloated giant that is MEC?