COMMENT | Reforms for safer and fairer polls in Batu Sapi

COMMENT | Malaysia faces a difficult situation ahead: constitutionally it is required to hold elections within sixty days in the case of Batu Sapi by-election and within the time frame before Aug 7, 2021, in the case of Sarawak state polls.

Despite the well-meaning calls by health professionals, including Health Minister director-general Dr Noor Hisham Abdullah to postpone polls for public health, the legal requirements suggest that polls have to be held within these time frames.

Polls in Batu Sapi are already scheduled for Dec 5 with nomination day on Nov 23. This parliamentary seat is important for the overall competitive count for a national government majority. It also poses serious challenges for a safe and fair poll.

Rethinking proposed reforms

To address the need for safer elections, Bersih 2.0 and other groups have called for procedural reforms. These calls have been in place for some time and were made before the Sabah state elections as well, as concerns were raised about the safety of the polls during Covid-19.

Now one month after the Sabah elections, the results of the Election Commission’s (EC) inadequate proactive measures, risks of greater movement during elections and poor/double standards in following the SOPs in place have been made apparent.

While the by-elections of Slim and Chini occurred safely, Sabah’s elections did not and this has rightly raised serious concerns about safety in the coming polls, especially given the ongoing third wave of Covid-19.

The reform proposal that has received the most attention and support is postal voting. This measure holds promise. Yet, there are persistent concerns about potential electoral fraud of this measure that would need to be resolved. More immediately, implementation is a problem.

Postal voting would require new regulations to be gazetted and would be strengthened with a bill on the matter from parliament, difficult to achieve given the realities of political contestation in the legislature.

It would also require a timely commitment on the part of the EC for implementation. Sadly, the new EC leadership has blocked reforms in the past and has already shown resistance in proactively implementing necessary protections to protect lives in Sabah. 

Postal voting, importantly, would not address the gamut of issues that contributed to higher public health risks in Sabah.

More needs to be done to make sure that lives are not lost in the coming polls. There needs to be a broader discussion of what is legal, can and should be implemented in the short time period ahead to assure that the election required by law occurs safely and fairly. 

The discussion needs to begin by better understanding the contextual factors that promote risk in elections, particularly in the next context ahead of Batu Sapi.

Below, we do two things. We look at the unique features of the coming Batu Sapi by-election, flagging problems that require solutions to assure safety and fairness. Second, we suggest possible alternative viable administrative reforms, which can address these issues by reducing risks and assuring fairness.

Batu Sapi: A risky challenging environment

Batu Sapi is no stranger to a by-election. It had one in 2010. The coming 2020 by-election will be very different. It comes at one of the most difficult periods for Sabah, and arguably Malaysia.

Located near Sandakan, this parliamentary seat of 32,950 voters contains urban, semi-urban and remote areas. There are six islands in the seat, which is made up of the state two seats of Sekong (won by Warisan) and Karamunting (won by Warisan [DAP]) in the September state election.

Beyond the varied terrain, it is a seat with a large highly vulnerable population. Conservatively at least 40 percent of the seat are voters are B40 voters, making less than RM3,000 per household. Money politics plays a large role in campaigning the seat, with large investment spent on bringing voters to the polls, and, of course, wooing voters.

It is estimated that in the two state seats a total of RM6 million was spent to win these seats last month. This dynamic involved close personal campaigning, some under the ‘Covid relief’ umbrella, which put voters and campaigners at risk.

The personalising campaign is further accentuated by the fact that a majority of 58 percent voters are over the age of 40, with 21.2 percent over the age of 60 (among the most vulnerable group for Covid-19). Social media use which is common in the more urban/semi-rural areas is not as available in the remote areas. Many areas even lack radio and television access.

Batu Sapi is also comprised of an ethnically diverse population, with many of the communities living in their own enclaves. Chinese, Bugis, Bajau, Orang Sungai, Suluks, Indonesians and Kadazandusun are the largest communities.

Campaigning is further personalised through different ethnic and social networks. This in practice means that different ethnic communities come into support the campaign and engage the communities. Often this involves campaigners from Peninsular Malaysia, and sometimes representatives of federal agencies.

The role of outsiders is further accentuated in a by-election situation, as greater media attention centres on the contest and even more resources/personnel are brought in from outside to win the seat.

As with all seats in Sabah, there are also a large number of voters living outside of the seat who may want to return to vote. We estimate based on the voter composition and electoral roll that 17.2 percent of the voters or 5,664 voters in this seat are living outside – within Sabah, in Sarawak and in Peninsular Malaysia.

This means that movement in and out of the area will occur unless measures are put in place to reduce this risk. The seat also contains a navy camp of over 2,000 voters and with any election, will involve an increase of police personnel usually brought over or into the area– putting these front liners at risk as well.

Finally, and most worrying of all, Batu Sapi is part of the epicentre of the third wave of the virus. Through Oct 29 in this month, Sandakan district has 1,446 Covid 19 reported cases, with 32 deaths. There are currently 1,374 active cases. From noon Oct 28-29, in a single day, there were 33 cases detected in the Batu Sapi constituency alone. These cover a variety of areas from Kampung Bokara and Kampung Bahagia to Kampung Gelam and Lintas Sibuga. 

There is currently one enhanced movement control order (MCO) in Taman Mawar within this constituency. In the broader Sandakan district as a whole and including Batu Sapi, there were over 100 new reported cases over the same single-day period with another enhanced MCO in nearby Mesra from another Covid cluster. By any measure, the public health situation is not good.

These challenges – concentrated centres and notable numbers of infection, personalised campaigning, movement of people, and vulnerable communities - are not easy to address. Batu Sapi poses a serious problem for voter safety while maintaining the integrity of the poll.

What can be done

Beyond the call for reforms, multiple parties/alliances – BN and Parti Cinta Sabah (PCS) have already said they will not contest. It remains to be seen however given the fact that this is a parliamentary contest whether other parties or their proxies choose to not contest in the seat. Party statesmanship would serve Malaysia well, to reduce the campaigning and risks involved.

Another proposal is to consider a special specific amendment to delay the polls, which would require partisan agreement, or agreement to allow the incumbent party to hold onto the seat after Covid-19 risks have been reduced.

Constitutional opinions vary on the effectiveness of these measures and there is disagreement over whether such measures would be viable to pass parliament given current fragmentation.

What then should be considered, especially given that the poll is starting in less than a month? Can Malaysia carry out a safe Batu Sapi polls, as has occurred elsewhere even with similar numbers of cases in the community, such as in South Korea?

We lay out a few alternative suggestions:

Advance voting for outside voters: Measures should be put in place to allow those living outside of Batu Sapi to not to have to return to vote, to minimise movement. This can be done by asking Batu Sapi voters outside to register online and vote in alternative locations, with party witnesses in local offices or in monitored early voting stations set up in locations where there are large numbers of voters.

Advance voting stations could be set up in Kota Kinabalu, Johor and Kuala Lumpur, or other areas where voters are located such as Tawau or Penang. Keep in mind the total number should be less than 6,000 voters, so this is administratively manageable and cost-effective.

Localised and early voting stations: To reduce the risk of movement within Batu Sapi, more local polling stations can be set up to assure small numbers of voters in each location. Administratively some of these can vote through early voting. This should, in particular, be considered for older, more vulnerable voters and the disabled community.

Irrespective, the voting should be staggered to assure that stations are not crowded, and even in the more urban areas, voting centres can open a few days earlier, to reduce numbers and contact. This will also mean less need for multiple security personnel, as they can be assigned over a period of days rather than bringing in large numbers for polling day.

Beyond age and health, special attention needs to centre on communities that live in crowded and remote areas, who could be especially vulnerable to greater contagion if the infection comes into their communities as they lack medical access. 

Areas that should have localised voting are on the islands, to reduce the need to travel to the mainland, for example. Broadly, a careful review of the polling stations should be conducted to reduce their size and reduce the contact among voters in the voting process, with special attention to vulnerable groups.

Local and regulated campaigning: To reduce the movement of outsiders into the area to campaign, recognising that some will come such as media, a code of conduct should be put in place by parties and organisations operating in Batu Sapi, with stronger standard operating procedures (SOPs) enforcement and the introduction of tighter measures regulating the distribution of patronage in the campaign.

Candidates, campaigners and campaign watchers should be required to sign a code of conduct. There should be a voter education campaign to increase awareness, reassure voters and encourage better compliance with the SOPs.

The federal government should pledge not to send personnel from departments not directly related to election administration, public health and security to Batu Sapi. Fines for violating SOPs in the campaign should be increased, with all campaigners from the prime minister onwards required to wear masks while campaigning and maintain social distancing. Ceramah in all forms should not be allowed.

Levellers in the campaign process: Campaigning poses the most risk of infection, as these environments are not well monitored. Here is where the code of conduct is especially important, to reduce the numbers of those who can campaign and risk of exposure.

The campaign SOPS should be put in place as soon as possible, as some campaigning starts before the official campaign period. To complement the constraints on personal campaigning, all candidates should be given television and radio airtime and efforts should be made to improve social media access in this area to allow for better access to information for voters, including if necessary needed additional communication towers.

Parties should consider ratcheting up their social media campaigns, reducing their dependence on personal campaigning.

Early enhanced MCO voting: To not violate suffrage, special measures need to be put in place to allow voters in these public health controlled areas to vote. These areas should have RT-K antigen testing as well as early voting, allowing the health ministry and election officials to collaborate to assure that these areas are treated separately as well as safely and at the same time included in the vote.

Increase broad RT-K testing and deeper contact tracing: While this may be resisted on resource grounds, another measure is to increase testing for all voters in Batu Sapi, to allow a better assessment of the virus situation before the election and determine the scope of spread within the community.

With medical staff going to the different areas working through trusted civil society, local representatives and local networks, this can be done on a volunteer basis and be supported by voter education initiatives. Time should be allocated to explain the need for testing, encourage testing (even with a possible incentive) and to assure confidentiality for individuals.

Wider testing can increase confidence in to reassure people that the voting is safe. At the same time, broader testing would help to assess risk and determine where further proactive public health interventions are needed. The voters in the areas are less than 30,000 voters and testing could begin early.

Batu Sapi for building confidence

These suggestions aim to start a pragmatic discussion on steps ahead. A wider and timely conversation is needed, with civil society participation, further inputs from medical practitioners and collaboration with the EC. These ideas can be implemented, along with other measures suggested such as postal voting if action is taken quickly and proactively.

Now is the time to be innovative, to make changes to protect Malaysians, and to be responsible, to adopt common sense measures that serve the wider community not specific individuals, agencies or parties. The previous measures in Sabah and how they were not implemented did not work adequately.

It is important to appreciate that Malaysians can conduct polls safely if Malaysians and officials work together and learn the lessons from recent history and adopt administrative reforms. Greater discussion and buy-in regarding possible measures would strengthen the needed collective effort.

The Batu Sapi polls can serve to restore faith in the electoral process, badly damaged after Sabah’s elections. The reality is that elections will likely have to continue to be held in the Covid-19 environment due to constitutional provisions, likely even beyond Sarawak.

It is not clear how long the risks of the pandemic will continue. As such, putting in place viable measures now is essential. Sabah voters, after all the hardship they are facing after the September state polls, need more assurances that their votes and safety are respected.

BRIDGET WELSH is a Senior Research Associate at the Hu Fu Centre for East Asia Democratic Studies, a Senior Associate Fellow of The Habibie Centre, and a University Fellow of Charles Darwin University. She currently is an Honorary Research Associate of the University of Nottingham, Malaysia's Asia Research Institute (Unari) based in Kuala Lumpur.

CHAN TSU CHONG is a socio-political activist currently based in Melaka. He was the former Outreach Officer in Bersih 2.0 and has been involved in various electoral reform campaigns.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.