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Election Laws Need Reform for Transparency and a Level Playing Field

Reforming Political Financing

Transparency International Malaysia (TI-M) calls for changes in election laws in respect of election finance and caretaker government to promote transparency and a level playing field, which are essential to free and fair elections.

As part of this effort, TI-M has initiated discussions amongst like-minded NGO’s and individuals to coordinate civil societies’ election monitoring efforts for the 12th General Elections.

TI-M supports the idea of a Royal Commission on Electoral Reform (RCER) to be established after the March 8 Elections. The Commission’s term of reference should cover all aspects of electoral process and not confined to the existing jurisdiction of Elections Act 1958 and Election Offences Act 1954.

TI-M proposes the following changes:

1. Restriction on Caretaker Government’s power.

As pointed out by constitutional law expert Prof Shad Saleem Faruqi, by the Commonwealth tradition, the out-going government is only the caretaker government which should refrain from making any politically controversial decisions such as making appointments or dismissals in key posts, make important policy decisions, implement new laws or commit the incoming government into any major expenditure. TI-M proposes that the functions of the Caretaker Government be stipulated in the Federal Constitution, be governed by an Administrative Neutrality Act or at least a written convention like that in Australia:

2. Taking the Political Parties as Unit of Accounting in Election Finance

As admitted by EC Secretary Dato Kamaruzaman himself, the Election Offences Act 1958 governs only expenses by candidates but not by the parties. This loophole has allowed parties to spend massively beyond the caps of RM 200,000 (parliamentary) and RM 100,000 (state) contest without getting caught. TI-M suggests that the Act be amended so that not only candidates’ finances but the parties’ election finances be subject to the caps . In this election, by right, no parties should spend more than RM 94.9 million as they may, at most, contest only 222 parliamentary seats and 505 state seats. However, some parties’ advertising expenses alone may exceed this figure. Knowing the loophole, the EC should proposed a change to the law or remove all caps subject to strict reporting requirements.

3. Enforcing Reporting of All Contributions to Election Campaign

Under present practice, most candidates do not report the contributions they receive in kind and in labour and many of them under-report even monetary contribution. This prevents the public and media from knowing who bought influence and by how much. Good governance is therefore threatened because elected representatives may return the favours to their sponsors after elections, resulting in bad policies and inefficient allocation of resources. To ensure that the candidates report honestly, TI-M proposes that the certain caps of contributions be formulated and heavy penalties prescribed for non-reporting and / or under-reporting. To curb money politics, caps may instead be placed on the contributors, limiting what wealthy individuals/groups can contribute to a single candidate and to all candidates. Alternatively, we might accept a system of having no caps but subject to strict reporting requirements.

4. Introducing Public Financing of Election Campaign

Since modern electioneering is indisputably essential to democracy but also inevitably expensive, TI-M proposes that the governments – at both federal and state levels – allocate a reasonable of funding to subsidize political parties and candidates. Such practices are found in many European, American and even Asian countries.

Forcing the contestants to depend solely on private funding incur two heavy costs on the citizenry:

(a) resource-poor citizens will shy away from politics;

(b) elected representatives may return the favour of their sponsors in public decision making.

Public/State subsidy for electioneering can be allocated to various contestants in many objective formulas – one of them is through their vote shares in previous election.

TI-M believes that the four reforms listed above are vital for transparent, free and fair elections in Malaysia. They should be included in the terms of reference for the Royal Commission on Electoral Reform (RCER) called for by the civil society. TI-M is pleased to offer its input in such discussions after the elections.

Reforms in the following areas will also have positive impacts for transparent, free and fair elections:

– Equitable access to the media, print as well as electronic, for all political parties.
– Allow peaceful political rallies
– Bar candidates with records of convictions for fraud and corruption
– Election Commission to bring about an electoral system and process that meets the requirements of transparency, integrity and accountability that complies with best practices as recommended by international bodies including the United Nations. This includes ensuring that the principle of “one man, one vote” is adhered to as far as possible.

Tan Sri (Dr) Ramon V. Navaratnam (President)
Dato Seri Megat Najmuddin Megat Khas (EXCO Member)
Richard Yeoh (Executive Director)