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TI-Malaysia : Election Laws Need Reform for
Transparency and a Level Playing Field
February 22, 2008
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:
http://www.dpmc.gov.au/guidelines/docs/caretaker_conventions.rtf
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. such free
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.
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