The PEMANTAU Report for the 11th Sarawak State Election 2016 Published by: BERSIH & Adil Network Sdn Bhd A-2-8, Pusat Perniagaan 8 Avenue Jalan Sungai Jernih 8/1 46050 Petaling Jaya, Selangor, Malaysia. Tel: 03-7931 4444 Fax: 03-7931 4111 Email: [email protected] Website: www.bersih.org 2 Table of Contents Acknowledgement ................................................................ 4 Executive Summary ............................................................. 5 Major Recommendations ........................................................ 6 Introduction ........................................................................... 8 Background and Framework ............................................ 9 Methodology ......................................................................... 10 Limitations ............................................................................ 13 Findings ................................................................................. 15 2.1 Undue Influence and promoting feelings of ill-will or hostility ................................................................................. 15 2.2 Bribery ................................................................................. 19 2.3 Treating ............................................................................... 28 2.4 Use of government machinery and resources ........ 31 2.5 Partisan behaviour by police and the Election Commission officers and observers .................................. 32 2.6 Illegal Campaigning ......................................................... 36 Unauthorised expenditures and excesses of RM100,000 ................................................................................................................ 36 Use of polling stations for campaigning ............................... 39 Campaigning on polling day ...................................................... 40 2.7 Conveyance of voters ...................................................... 41 2.8 Procedural Irregularities .............................................. 42 Indelible Ink ..................................................................................... 42 Poor training of returning and presiding officers ............ 43 Last minute removal of a polling station ............................. 44 Overseas Voting .............................................................................. 45 Conclusion and Recommendations .............................. 47 Appendix 1 ............................................................................ 51 Appendix 2 ............................................................................ 55 3 Acknowledgement BERSIH 2.0 would like to thank all the individuals and organisations that contributed their time and resources to make the PEMANTAU Sarawak observation possible. In particular: • The BERSIH Sibu team, in particular Hu Ting Ung, Dominic Hii and Wong Meng Chuo; • Save Rivers, for mobilising their networks for volunteers; • Cyril Dan, for coordinating the Miri observation efforts; • Zoe Randhawa, BERSIH Senior Advocacy Officer and Chan Tsu Chong, BERSIH Senior Outreach Officer who were the mission coordinators; • Thomas Fann, BERSIH Treasurer, Fadiah Nadwa, BERSIH National Steering Committee member, Lena Hendry, volunteer coordinator, Nurul Nadhirah Aman, BERSIH Assistant Programme Officer, and Maisara Amira, BERSIH Administrative Officer; • All our volunteers from across Sarawak and West Malaysia; • Lawyers from Miri, Sibu and Kuching for standing by with legal help throughout the campaign period; • The members of the public who helped distribute PEMANTAU leaflets and contacted the PEMANTAU hotline with reports of election offences. 4 Executive Summary The PEMANTAU Sarawak initiative was launched in February 2016 after consultations between the BERSIH 2.0 Steering Committee, Secretariat and civil society leaders in Sarawak. The mission was to be a continuation of the PEMANTAU initiative undertaken for the 13th General Election (GE13) in 2013, but adapted to better suit to the unique nature of Sarawakian elections. As with the GE13 PEMANTAU, it was aimed at reducing or preventing fraud in the election and empowering local communities and individuals to take an active role in ensuring a free and fair election. A total of 93 observers were mobilised and trained to observe nomination day, the campaign period and polling day, in five target seats: Tasik Biru, Batu Kitang, Bawang Assan, Senadin and Telang Usan. In addition, a PEMANTAU hotline was set up and media reports were scrutinised for possible offences. This report has outlined eight categories of electoral misconduct: 1. Undue influence and promoting feelings of ill-will or hostility; 2. Bribery; 3. Treating; 4. Use of government machinery and resources; 5. Partisan behaviour by police and the Election Commission officers and observers; 5 6. Illegal campaigning, including unauthorised expenditures, use of polling stations for campaigning and campaigning on polling day; 7. Conveyance of voters on polling day; 8. Procedural irregularities, including the last minute removal of a polling station and failings in the overseas voting procedures. The PEMANTAU findings illustrate that not only are there blatant disregard for the principles of free and fair elections by candidates, political parties and government institutions, but also clear breaches of election laws. The report finds the Election Commission failed to ensure the principles of free and fair elections were abided by and, more seriously, failed to enforce domestic election laws. The report further concludes Malaysia’s election laws must be strengthened, particularly to set boundaries for the conduct of a caretaker government and to make campaign financing more transparent. Major Recommendations For the Federal and State Governments to: − Introduce a moratorium on financial handouts, land titles, and other financial benefits once Parliament and State Assemblies have been dissolved. − Establish an independent and fair caretaker government prior to election period and set out 6 guidelines, roles and responsibilities for implementation. The Election Commission should: − Promote and develop international and domestic observation through an open and transparent process and establish election observation as integral part of the election processes. − Take responsibility to provide clear and precise information on roles and responsibilities of polling and counting agents. − Carry out thorough trainings for political parties and local officers, in particular the returning officers, presiding officers and enforcement officers for each constituency. Political parties and candidates should: − Make public declarations of election expenditure, including donations received and spent. − Adhere to fair and ethical standards in campaigning. 7 Introduction This report will document the conduct of the 11th Sarawak State Election, from nomination day until polling day, and assess the extent to which the election was free and fair. For an election to be “free”: • Candidates must be able to campaign throughout the constituency without undue barriers, save for ensuring law and order in the area; • Voters must be able to freely assess the manifestos put forward by the various candidates and make an informed choice; • Voters must be free to cast their vote with relative ease and free from interference on polling day. For an election to be “fair”, a level playing field and equal opportunities must exist for all candidates, regardless of resources and position. The candidates must: • Adhere to the spending limit of RM100,000 for Legislative Assembly candidates, in accordance with Section 19(1)(b) of the Election Offences Act, to ensure an advantage is not given to the wealthier candidates; • Not abuse positions within the caretaker government to obtain an advantage;1 1 Section 17(i), “Declaration of Global Principles for Non- partisan Election Observation and Monitoring by Citizen Organisations”, Global Network of Domestic Election Monitors, (3 April 2012) 8 • Have equal access to media.2 This report will further consider the role of the Election Commission in ensuring free and fair elections and compliance with election laws and regulations. Background and Framework The PEMANTAU Sarawak initiative was a combination of efforts by BERSIH 2.0 and local NGOs in Sarawak, in particular BERSIH Sibu and Save Rivers. The program was based on the model of PEMANTAU carried out in the 13th General Election in 2013, which was developed in partnership with Pusat KOMAS and Malaysians for Free and Fair Elections (MAFREL). In 2013, the PEMANTAU team mobilised 3000 domestic observers to cover 89 parliamentary constituencies. A non-partisan monitoring of elections by civil society and citizens has emerged as a key and meaningful element in strengthening democracy. These efforts have contributed towards cleaner elections, prevent conflict, and improve accountability. In the past two decades, millions of people in over 90 countries have participated in election monitoring to protect the integrity of their elections and to strengthen the accountability of the government and political parties. The GE13 PEMANTAU framework was based on these internationally recognised models and the conceptual framework for this 2016 mission remained the same. The framework was derived from the principles in the Universal 2 Ibid., Section 17(l) 9 Declaration of Human Rights3, the Global Network of Domestic Election Monitors4, Malaysia’s