COMMENT The court case that has seen six overseas Malaysians fight the Election Commission (EC) after it rejected their application to become postal voters has moved tantalisingly toward some form of closure.

The litigants, all living in Britain, had on Oct 24 called for an adjournment after the commission's senior federal counsel (SFC) verbally notified them that the EC would change the regulations.

Although no formal statement was presented in court, the SFC told Justice Clement Allan Skinner that the EC was working to allow the litigants (and other eligible overseas Malaysians) to vote by post.

On Oct 27, three days after the adjournment was fixed for Feb 28, 2013, Malaysiakini reported that the Foreign Affairs Ministry was set to introduce postal voting for all overseas Malaysians, after being notified that the EC would amend the relevant rules and that implementation would follow shortly after.

The ministry said the amendments had not been distributed to parliamentarians and gazetted, "but our staff at all embassies and representative offices are ever ready".

NONEDeputy Foreign Affairs Minister A Kohilan Pillay (left) told Berita Harian that action would be taken once the amendments were adopted and gazetted, to ensure information on postal voting reaches Malaysians overseas.

The amendments are now expected to be tabled during the current sitting of the Dewan Rakyat.

However, the case launched by the Malaysians - Teo Hoon Seong, Vinesh Vijayan, Paramjeet Singh, Yolanda Augustin, Sim Tze Wei and Leong See See - has not concluded formally.

The long-running saga behind Teo vs EC began in 2011, soon after the six formally applied to the EC to be registered as postal voters. The applications were rejected and the legal challenge against the commission's decision not to recognise their voting rights - which are supported in the federal constitution - was lodged.

On Jan 6 this year, the Kuala Lumpur High Court threw out their case in a decision that was decried by lawyers who argued that the judge, Justice Rohana Yusof, had missed the point of their legal challenge.

My Overseas Vote (MOV), which is supporting the six Malaysians and advising the case, maintains on its website that the court appears to have misunderstood the challenge, which struck at the heart of the 2002 Elections (Registration of Electors) Regulations.

azlanPapers presented in the case state that the regulations are arbitrary and discriminatory because the EC had prescribed to only allow government servants, military personnel and students (and their spouses) to be considered as absent voters, while depriving all other eligible Malaysians living overseas that same right to vote by post.

More importantly, the six have argued that the regulations stood as a violation of the constitution, which explicitly allows for voting by absent voters who are not resident in a constituency, including themselves.

The litigants asked the court to declare that they are entitled to be absent voters or, alternatively, to direct the EC to extend ‘absent voter’ definitions in its regulations so they would include the six citizens and other Malaysians resident overseas.

Nevertheless, Justice Rohana stated in her written judgment that the court cannot order the EC to make regulations to include the six as overseas voters because the court's duty is only to interpret the laws.

This stunned the litigants, their lawyer Edmund Bon who continues to represent his clients pro bono, and the legal fraternity.

‘Duty toward fair vote’

The Oct 27 announcement and the EC's about-turn in court three days earlier implies that the commission has discriminated against the litigants in spite of their constitutional rights, and it would appear that the six have won the argument.

NONELead litigant Teo (right), asked why she had put herself forward in the case, said: "There is only so long that you can sit back and watch your country go down the drain."

Co-litigant and trustee in the matter See-See Leong said: "We don't see the EC amending the regulations as a bonus. It is their duty to ensure voting is fair to all the electorate.

"They had over a year to amend the current regulations, which discriminates voters on the basis of their profession.

"The EC now has less than a month to amend, gazette and lay the regulations before the Dewan Rakyat before the parliamentary sitting ends on Nov 27. Will they struggle to fulfil their duty again?"

MOV says fighting for 1 million Malaysians abroad to become postal voters remains its top priority.

"Inseparable from this is our insistence on a longer campaign period and secure means of handling the ballot,” it said.

"If the regulations are not amended before the parliamentary sitting ends, we will apply to bring forward the hearing at the Court of Appeal."

Until the events of last week, the EC had not been seen to have acted on the parliamentary directive to recognise nearly 1 million overseas citizens as postal voters.

NONEMalaysians may now rightfully ask: Has EC chairperson Abdul Aziz Mohd Yusof (left) shown himself as unqualified for his all-important job, or has he chosen to discriminate within those powers?

MOV considers it is "inconceivable" that the EC does not know its powers, considering its own legal staff and an annual budget of RM700 million.

The actions of its chairperson, measured against matters of law and the constitution, until recently depicted a very disturbing pattern of arbitrary discrimination, ignorance of the very legislation he must work to and, above all, contempt of the Dewan Rakyat itself.

Consider that the Elections Act 1958 empowers the commission to regulate to register voters, including the ability to determine electors. Specifically, it also allows the commission to ‘prescribe the facilities to be provided for voting by post and the persons entitled to vote by post’.

But while the chairperson and his commission continued to spite the six Malaysians in Teo vs EC and, by extension, nearly 1 million Malaysians overseas, Abdul Aziz used his power to grant postal-voter status to previously ineligible spouses of police officers in the General Operations Forces.

High stakes

As farcical as all this may sound, the fact remains that six lone Malaysians continue to risk great financial pain and immeasurable personal strain for the crime of demanding their constitutional rights of the EC.

The electoral numbers behind extending postal-vote status to all eligible Malaysians go towards explaining why the EC has avoided doing the right thing, perhaps because its chairperson views himself as a government servant, when he is in fact in service of the public.

azlanAccording to MOV, which has supported the legal challenge, introducing 1 million Malaysians as voters will mean an increase of up to 9 percent to the electoral roll - a surge in voter numbers that spells disaster for BN, which lost its two-thirds parliamentary majority in the now historic elections of 2008.

There is now every indication that the 13th general election will be called after the Chinese New Year in February 2013.

It still remains to be seen how fast the EC will meaningfully act to allow 1 million overseas Malaysians to vote by post in that general election.

The stakes are high for Malaysia, considering how such a huge voting bloc may spell the difference between a slim majority and a landslide win for Pakatan Rakyat.

At the same time, Malaysians once again face being denied a clear and present chance to democratically change government after 55 years of Umno-dominated rule under the BN.

In the wake of denial of their constitutional rights, the travesty of voter discrimination by Abdul Aziz, contempt of Parliament and mounting legal costs, the six Malaysians in Britain insist they will fight on.

Leong said: "We are fighting alongside Ambiga Sreenevasan and Bersih. Like them, we treat this as a job we have to do."

WILLIAM DE CRUZ is a Malaysian who resides in Sydney. He fully intends to fly home to Malaysia to vote in the 13th general election.

~ Malaysiakini