REFLECTING ON THE LAW BY SHAD SALEEM FARUQI
FOR the twelfth time in our nation’s history, the electorate will have the chance, on March 8, to participate in democracy’s greatest showcase event – the exercise by the people of their right to choose their Government.
In developed democracies the right to vote (also referred to as franchise or suffrage) is taken for granted. Actually the right has had a chequered history and it was only in the last century that “universal adult suffrage” won acceptance.
Even within nations regarded as sentinels of democracy, there were (and in some cases still are) many voting disabilities attaching to race, religion, gender, wealth, bankruptcy, vagrancy, education, age, profession, residency, nationality, naturalisation, lunacy and criminality.
Nationality: The rule that citizens have a right to vote is not universal. In Kuwait a voter must have been a citizen for 20 years. In Pitcairn Islands he must prove three years’ residency. On the other hand, Britain, the European Union, Gibraltar, Hong Kong and Macau permit Commonwealth citizens or EU members or British citizens or permanent residents, respectively, a right to cast the ballot.
Interestingly in Bhutan each family has one vote at village-level elections. In Macau registered “corporate voters” have a right to cast the ballot.
Age: In all democracies people above the prescribed age have a right to suffrage. A survey of 230 political systems reveals that the right to vote comes alive at 16 years of age in six countries; at 17 years in five nations; at 18 in 195 societies, at 19 in one country; at 20 in seven political systems; at 21 in 12 countries (including Malaysia) and at 25 in one country.
In Bolivia married people vote at 18, unmarried at 21. In Indonesia married people have the franchise at any age. In Slovenia the age of voting is 18, but is lowered to 16 for those employed.
Mandatory duty: Voting is compulsory in Australia, Bolivia, Brazil, the Dominican Republic and Peru. But in Brazil and Peru the duty stops at age 70.
Race: In apartheid South Africa coloured persons had no right to vote. Australia till 1967 denied a vote to the Aborigines. In many legal systems in the Americas, property and literacy requirements indirectly deprived the coloured people an opportunity to participate in the electoral exercise till fairly recently.
Religion: In Britain and Ireland (till 1788) and in Canada (till 1955) Roman Catholics, Jews, Quakers, Mennonites, Doukhobors and many Christian sects were barred from the polls. In the Maldives, only Muslim citizens have voting rights.
Gender: In early democratic history, women had no right to vote. Britain gave women an equal right to vote only in 1928, the United States in 1920, France in 1944 and Switzerland in 1971. In Lebanon, males have a duty to vote at 21; females are authorised at 21 if they have elementary education.
Wealth: Until the 19th century many Western societies allowed only landowners to vote. Alternatively, voting rights were weighed according to the amount of tax paid, as in Prussia. Property qualifications tended to disqualify non-Whites because tribally-owned property was not allowed to be taken into consideration.
Vagrancy: The homeless lack a regular address and are unable to register. Here is an example of how even in this age, electoral law stigmatises poverty!
Literacy test: In Brazil (till 1965) and in many southern regions of the United States (till this practice was invalidated by the courts) voters had to pass a literacy test. Indirectly this disenfranchised the poor and the coloured citizens. In Lebanon, female voters must possess elementary education to qualify for a vote.
Profession: In Peru, the Dominican Republic, Brazil, Guatemala, Kuwait and Oman, military conscripts have no vote. Neither do the police in the first two countries.
Eligibility in Malaysia: In Malaysia, under Article 119 of the Federal Constitution, a voter must satisfy the following qualifications:
> He must be a citizen;
> He must be 21 years of age on the “qualifying date” (the date on which he applied for registration as an elector in a constituency);
> He must be registered in the electoral roll as a voter in the constituency;
> On the qualifying date he must be a “resident” in the constituency where he seeks to register himself. If not so resident, he must qualify as an “absent voter” under the Election (Postal Voting) Regulations 2003.
It is to be noted that under Article 119(2) if a person is in a constituency by reason only of being a patient in an establishment for the treatment of mental patients, he is deemed not to be a resident in that constituency; and
> He must not be disqualified under Article 119(3) or any other law.
Disqualifications: Just as the qualifications for voting are prescribed, similarly disqualifications are woven into the law by Article 119 (3). A citizen is not eligible to vote if:
> He is, on the qualifying date, detained as a person of unsound mind; or
> He is, on the qualifying date, serving a sentence of imprisonment for an offence in any part of the Commonwealth and was sentenced to death or imprisonment exceeding 12 months and has not on the qualifying date served out his sentence or been pardoned.
An interesting case on this point is Yazid Sufaat v Suruhanjaya Pilihanraya (2006). The applicants were citizens who were detained under the Internal Security Act. They informed the Commission of their intention to vote and requested the Commission to facilitate the exercise of their right. The Commission failed to do so.
Raus Sharif J held that as the applicants were not convicted prisoners serving sentences of imprisonment they were not disqualified from voting.
However their right to vote is at the particular constituency where they had registered. The Commission has no duty in law to bring them there. As they were not registered as postal voters under the Election (Postal Voting) Regulations 2003 they were, therefore, not entitled to postal voting.
This legal view is in contrast with Canada where in the case of Sauve v Canada (2002) all prisoners were held entitled to vote because of a constitutional right.
Need for reform: Some aspects of the Malaysian law relating to voting lead to undesirable results. First is the issue of a very high voting age. In Malaysia 52% of the population is below 21 and is ineligible to participate in elections.
It does not appeal to reason that in a country with nearly 100% literacy, and a statutory age of capacity at 18, the right to vote must be withheld till age 21.
A second significant factor is that there is no automatic right to vote by virtue of one’s citizenship. There is a requirement of prior registration on the electoral roll of the constituency of one’s residence.
This is necessary for many reasons, among them the need to prevent a massive influx of outside voters in hotly contested constituencies.
But its undesirable result is that those who fail to beat the deadline to register get disenfranchised. A possible solution is that every citizen of age according to National Registration Department records must be automatically registered at the address in his identity card.
If he wishes to change his residence and his voting constituency, as is his right, the burden should be on him to fill the necessary forms. Otherwise he should be registered automatically according to the particulars on his identity card.
The combined effect of high voting age and the mandatory registration requirement is that nearly 60% of the total population is excluded from the electorate and is, therefore, ineligible to vote!
This number is far too high. It affects perceptions of legitimacy. It requires some serious soul-searching.
Dr Shad Saleem Faruqi is Professor of Law at Universiti Teknologi MARA.