14th General Election: Midweek Polls A Cause For Concern?

Abstract

One of the hallmarks of a democratic government is the election of a ruling government through fair and free elections partaken by the people. This article aims to explore two notable grey areas of Section 25 of the Election Offences Act 1954 from a constitutional and legal point of view.

Content

The dissolution of the 13th Parliament of Malaysia on 7th of April 2018 had paved the way for the coming of the 14th General Election (GE14).[1] Malaysia’s electoral system is largely characterised by the first-past-the-post (FPTP) concept: a government is formed when it secures the majority of the contested seats.[2] Constituencies are single-member constituencies and a candidate with the highest number of votes casted in his favour wins the contested constituency, even if those who endorse him do not constitute the outright majority of the voters.[3] The Election Commission has fixed the day of 9th of May 2018, which is a Wednesday as the day in which Malaysians go to the poll to elect the government of their choice.[4] GE14 marks the first instance in which polling takes place on a weekday since the 11th General Election in 1999.[5]

As polling will take place on a working day, a matter of momentous concern to employees is whether they are entitled to time-off to cast their votes. This is especially crucial for registered voters whose constituencies are located in East Malaysia, which comprises Sabah and Sarawak. Notwithstanding that polling day has been declared as a public holiday,[6] it remains a matter of interest to explore this area of concern and the governing law thereof.

The Election Offences Act 1954 mandates employers to allow their employees a reasonable period of time to cast their marked ballot papers on polling day.[7] The use of the word “shall” indicates the mandatory nature of the provision. Employers found in contravention of this provision shall, on summary conviction be liable to a fine of five thousand ringgit or to imprisonment for one year.[8] It is pertinent to note that the phrase “reasonable period” is not defined by the Act. This is a common practice in the field of law; no competent court of law or enacted legislation will accord a precise meaning to the said phrase or the like thereof. What is done in this respect in the usual state of affairs is the drawing of a parameter within which “reasonable” is given its effect.

With respect to the foregoing, what amounts to “reasonable” may be gleaned from established judicial precedents. In Penang Development Corporation v Khaw Chin Boo & Anor[9], Mohamed Dzaiddin J (as his Lordship then was) held that what 'a reasonable time' is, in each particular case, a question of fact. It must be reasonable having regard to the state of things at the period of time concerned.[10] Thus, if the same principle were to be applied here, it can generally be comprehended as a period which is reasonably given to anyone to carry out their duty to vote. This could possibly be determined by taking into consideration a number of factors such as the distance between the workplace and the said elector’s designated polling station, availability of transportation and etc.[11] The phrase “reasonable period” ought to be interpreted on a case-to-case basis. For instance, if an elector whose polling station is within the same district as his working place, a few hours would be deemed sufficient. Conversely, if a voter has to vote in East Malaysia and he is working in Peninsula Malaysia, “reasonable period” would have to be construed in a different light: it could possibly mean the entire day.

There appears to be another point worth pondering on as regards the provision above. To reiterate, the Election Offences Act 1954 requires employers to allow their employees a reasonable period of time to cast their votes on polling day. There is an unsettling concern as to the meaning of “polling day”. Does it strictly refer solely to 9th of May 2018 or could it possibly be extended to include any period of time a voter may reasonably require to commute to his appointed polling station? This grey area has tragically remained unaddressed.

The right of every Malaysian who has attained universal suffrage and is lawfully registered as an elector to cast a vote is enshrined in the Federal Constitution of Malaysia.[12] Our Federal Constitution is the supreme law of the federation: any law found to be inconsistent with it shall, to the extent of such inconsistency, be void.[13] Therefore, “polling day” ought to be accorded a liberal, wide construction so as to include the eve of polling day to ensure that every eligible voter is able to fulfil his civic duty to the federation. To interpret it otherwise, would mean depriving the provision the very purpose it serves; upon which it was enacted in the first place and to render it merely notional.[14] We ought to be reminded of the words of Lord President Tun Salleh Abas (as His Lordship then was), delivering the judgment in Che Omar Che Soh v Public Prosecutor[15], “We have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law”.

Ultimately, the author opines that laws must be interpreted as to uphold the fundamental liberties of the people and not to suppress the same. After all, one of the most distinctive elements which separates a democracy from other forms of government is the active participation of its citizens in politics and civic life – a constituent of which is the exercise of the right to vote.

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