April 8, 2012


6 MARCH 2012



Kuala Lumpur, March 6, 2012 (Tuesday) – Bersih 2.0, a coalition on free and fair elections,  and TindakMalaysia, a civil society movement on voter education and polling agent training, submit a memorandum to the Parliamentary Select Committee on Electoral Reforms (PSC). We believe that fundamental basis of a democracy is that elections must be Free and Fair. The current election laws and regulations have many weaknesses that prevent the achievement of this ideal.

I. Preamble

Since the formation of the PSC, BERSIH 2.0 and Tindak Malaysia have attended most of the public hearings and submitted more than 60 proposals at the following locations:

11 & 12 Nov 2011: Bilik JawatanKuasa 2, Bangunan Parlimen, Kuala Lumpur
25 & 26 Nov 2011: Bilik Kedah, Kompleks Pentadbiran Persekutuan Sabah, Kota Kinabalu
8 & 9 Dec 2011: Bilik Gerakan Negeri, Wisma Bapa Malaysia, Petrajaya, Kuching
15 & 16 Dec 2011: Dewan Sri Penang, Lebuh Light, Pulau Pinang
12 & 13 Jan 2012: Bilik Gerakan Tun abdul Razak, Bangunan Sultan Ibrahim, Johor Baru.

BERSIH 2.0 and Tindak Malaysia note with disappointment at the poor response of the PSC as its interim report whereby only three of BERSIH demands were included. The Election Commission has even backtracked and only commits itself to only one of BERSIH 2.0’s demands, i.e., to the implementation of indelible ink (Gazette PU (A) 43/2012 dated 13th Feb 2012) but with a discriminatory condition to exclude postal voters from the use of indellible ink. The PSC has only one month left to complete its mandate and we are deeply concerned that they will be unable to fulfil it and satisfy the legitimate demands of the Rakyat.

II. Overview:

The powers and functions of the EC are covered under the Constitution, the Election Laws and Regulations:


  • Composition of House of Representatives – Membership of Parliament, Articles 46 – 54,
  • Summoning, prorogation and dissolution of Parliament, Article 55
  • Elections, Articles 113 – 119
  • Delimitation of Constituencies, Thirteenth Schedule (Article 116)

Laws [Principal Acts] passed by Parliament:

  • Elections Act 1958 (Act 19)
  • Election Offences Act 1954 (Act 5)
  • Election Commission Act 1957 (Act 31) – Formation of Election Commission

Regulations [Subsidiary Legislation] made by EC

  • Elections (Conduct of Elections) Regulations 1981
  • Elections (Registration of Electors) Regulations 2002
  • Elections (Postal Voting) Regulations 2003

The EC has repeatedly claimed that they are short-handed and claimed that the Public Services Commission is slow in providing them with the necessary staff.

BERSIH 2.0 and Tindak Malaysia, with our team of lawyers, are here today to present to the PSC our proposal to reform the Election Laws and Regulations. Our submission today will cover the Acts of Parliament. Proposed amendments to the Regulations made by the EC will be submitted next week. Finally, we will look at the Constitution. The aim is to enhance public confidence in the Election Commission to carry out their Constitutional duty to conduct Elections Freely and Fairly.

The proposed reforms on Election Laws and Regulations will make it easier for the Attorney-General’s office to review them. BERSIH 2.0 and Tindak Malaysia is more that willing to assist the AG’s office to draft the bills for amendments to the principal acts. These amendments must be tabled in Parliament as well as the subsidiary amending legislation. A copy of the memorandum will be forwarded to the Election Commission to ensure that the amendments are brought before this Parliament seating in March and for their effective implementation by the Election Commission. BERSIH 2.0 and Tindak Malaysia will continue to monitor the responses of the elected people’s representatives to the series of amendments..

The Amendments are as follows:

Elections Act 1958

a)    Section 3: EC officers shall be drawn from relevant professional bodies, independent civil societies with procedures for appointment to be subject to public scrutiny,

b)    Section 9A: Certified electoral roll may be subject to Election Judge scrutiny in the event of an election being challenged,

c) Section 11: Qualifying date for registration as a voter deleted in view of automatic voter registration,

d) Section 15 (o): Punishment of offices for illegal shifting of electors,

e) Section 16 (2)(p): EC to draft an Electoral Code of Conduct.

Election Offences Act 1954

a) Section 2 (1): approved company auditor defined to cater for professional auditing of election campaign expenses,

b) Section 3 (p): shifting of elector,

c) Section 3 (o): refusal to mark finger with indelible ink,

d)    Section 4 (g): suspend election officer,

e)     Section 5 (8): communication between EC staff, candidates and agents, etc,

f)     Section 19 (1A): auditing of election campaign expenses,

g) Section 24B: police permit not required for election campaign,

h)    Section 26A: Booth location, equipment, procedures, number of booth observers, technical advisors, etc.

i)      Section 27I: report by public prosecutor to EC and Parliament,

j)      Section 41: power of Returning officer and presiding officer whether or not to reject ballot paper removed.

Election Commission Act 1957

a) Section 5 Certain communications to be privileged: deleted.

b) Section 6 Protection of members: to be afforded on proper and lawful actions,

c) Section 11 Consent of Public Prosecutor to prosecutions: Subject to reporting to EC and Parliament,

The Prime Minister has apologised for Barisan Nasional’s past mistakes. Therefore, the Prime Minister has to rectify one of the most serious mistakes that is the creation of a badly-flawed electoral system. The PSC has an historic opportunity to rectify this mistake and transform our electoral system to the standard expected of a developed nation. We urge the PSC not to let this golden opportunity slip away as millions of Malaysians will be very disappointed if you do.

BERSIH 2.0 and Tindak Malaysia demand that:

  1. The position of the EC Chairman and Deputy Chairman must be accredicted and paid at the same level as a Minister and Deputy Minister respectively.
  2. The Election Commission as an institution should be independent and not placed under the Prime Minister’s Department.
  3. The Prime Minister must be held responsible to ensure that electoral reforms from the PSC, BERSIH 2.0 and Tindak Malaysia be implemented before the next General Elections.

BERSIH 2.0 Tindak Malaysia

Dato A. Samad Said                                                                          Wong Piang Yow

Co-chairperson                                                                                  Founder

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