There has not been much noise over the issue, but recently a high court judge threw out an application by 6 Malaysians working and living in UK to be registered as “absent voters” in order to vote.
Justice Datuk Rohana Yusuf ruled that the six, who were the applicants in the case, clearly did not come under the categories of voters who can be considered as ‘absent voters’ listed under Regulation 2 of the Elections (Registration of Electors) Regulations 2002.
She said that under the regulation, the categories of ‘absent voters’ are members of the armed forces, civil servants serving overseas, university students and their spouses.
“The applicants clearly do not come under any of these categories. Thus, when the applicants applied to the EC to be registered as “absent voters” their applications were rejected by the EC in accordance with Regulation 2,” she said.
In her nine-page judgment, Justice Rohana also held that the application by the six for a judicial review to quash the EC’s decision was ludicrous and bordering an abuse of the court process.
Since I do not know the details of the suit, it could well be that Justice Rohana had confined herself to the case itself, without any consideration of any other relevant issues. But given the nature of the suit, it could hardly be claimed that she was not aware that the Malaysian constitution gives every eligible citizen the right to vote and denying overseas citizens “absent voter” status tantamounts to denying them that right because it forces them to return to the country, fulfill the residency requirement, in order to vote. What the 6 want is the right to vote, in this case, as “absent voters”.
Once again, let us check the relevant article in the constitution so as to make an informed opinion.
Article 119 (1) says:
Every citizen who-
- has attained the age of twenty- one years on the qualifying date; and
- is resident in a constituency on such qualifying date or, if not so resident, is an absent voter,
is entitled to vote in that constituency in any election to the House of Representatives or the Legislative Assembly unless he is disqualified under Clause (3) or under any law relating to offences committed in connection with elections; but no person shall in the same election vote in more than one constituency.
One has to appreciate that when you define a right for every citizen, only a well-defined exclusion should be allowed to exclude any citizen from that right. This is commonsensical.
“Every citizen who is 21years and above” and “is resident or if not so resident, is an absent voter” is entitled to vote, “unless he is disqualified”.
The issue about “residency or absent voter” is that everybody is to vote under a specific constituency and that no person should vote in more than 1 constituency in the same election.
The problem comes in Clause 4:
(4) In this Article “qualifying date” means the date by reference to which the electoral rolls are prepared or revised, and “absent voter” means in relation to any constituency any citizen who is registered as an absent voter in respect of that constituency under the provisions of any law relating to elections.
Which defines “absent voter” as one who is “registered as an absent voter in respect of that constituency under the provisions of any law relating to elections”.
The question is whether the requirement for registration is intended to deny any qualified citizen from his or her right to vote, or whether the requirement for registration is intended to ascertain which constituency that absent voter has to vote in. Commonsense tells us that if the constitution wants to deny anyone the right to vote, that would have come under Clause 3 and therefore Clause 4 is not intended to exclude anyone who wants to be registered as an absent voter. The whole idea of being registered as an absent voter is to determine the constituency that the absent voter is to vote in. The intention of Clause 4 is administrative, to ensure that electoral rolls are properly kept and the constituency that absent voters are to vote in is clearly stated in the electoral rolls because, “no person shall in the same election vote in more than one constituency.”
Thus the constitution clearly gives overseas citizens the right to vote as absent voters, as long as they are properly registered in the electoral rolls.
The questions I ask are these:
- Is it the duty of the High Court judge to consider whether the right to vote has been denied to overseas citizens? Is the case before her “ludicrous” as she describes it?
- Is it in the power of the Election Commission to deny anyone of their right to vote, where such right already exists, or is it their duty to ensure that as many as possible who wants to vote will have the opportunity to vote? The mechanism to vote from overseas as absent voters has existed for a long time, enabling overseas students, armed forces and civil servants to vote. Is it not the duty, ethos, of the Election Commission to extend that mechanism to as many overseas citizens who want to exercise their right to vote?
- Is it the duty of the elected government to ensure that laws that are passed do not inadvertently deny citizens their rights? And if confronted with such a case, are they not duty-bound to rectify the situation as soon as possible?
It seems that we have people working for us in the government, appointed to highly responsible positions and paid by tax revenue, or elected by us, who do not care about the citizen’s right to vote and the issue is now left to organizations such as Bersih, who are made up of ordinary citizens, unpaid and harassed by those who are in government. This is unacceptable.
The only resort left is to vote out the present government, and hope that the next government will care about our rights as citizens, enshrined in the constitution. And if the next government do not look after our rights and welfare, we should vote them out too, because the duty of any government is to look after the rights and welfare of citizens.
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Addendum: Article 119 of Malaysian Constitution
119.
(1) Every citizen who-
(a) has attained the age of twenty- one years on the qualifying date; and
(b) is resident in a constituency on such qualifying date or, if not so resident, is an absent voter,
is entitled to vote in that constituency in any election to the House of Representatives or the Legislative Assembly unless he is disqualified under Clause (3) or under any law relating to offences committed in connection with elections; but no person shall in the same election vote in more than one constituency.
(2) If a person is in a constituency by reason only of being a patient in an establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or mental defectiveness or of being detained in custody he shall for the purpose of Clause (1) be deemed not to be resident in that constituency.
(3) A person is disqualified for being a elector in any election to the House of Representatives or the Legislative Assembly if-
(a) on the qualifying date he is detained as a person of unsound mind or is serving a sentence of imprisonment; or
(b) having before the qualifying date been convicted in any part of the Commonwealth of an offence and sentenced to death or imprisonment for a term exceeding twelve months, he remains liable on the qualifying date to suffer any punishment for that offence.
(4) In this Article “qualifying date” means the date by reference to which the electoral rolls are prepared or revised, and “absent voter” means in relation to any constituency any citizen who is registered as an absent voter in respect of that constituency under the provisions of any law relating to elections.
The Micah Mandate is a Christian-based public interest advocacy ministry that seeks a transformation of our nation through justice, mercy and humility.
