The Bersih People’s Tribunal on GE13, a tribunal mooted in response to the public outcry and concerns of electoral fraud and irregularities in Malaysia’s 13th General Election (GE), took place from Wednesday, 18 September 2013 to Sunday, 22 September 2013.

On May 5 there were thousands of reports of voters being able to wipe the indelible ink off their hands quite easily. In its response, the Election Commissioner said that it was not a major issue since there would be no voting the following day.

BERSIH 2.0 had pemantau (observers) on the ground during campaign and polling day and received reports of vote buying through distribution of “goodies”; cash money given to influence voters to vote for a particular party; voters not on the electoral roll; voters pre-registered although they have never voted; gazetted electoral roll was still filled with irregularities and used on polling day; confusion over the procedures on advance and postal voting. There was also denial of opportunity to the opposition parties and with no right to reply through government owned communication channels (such as Radio Televisyen Malaysia – RTM) when negative messages were made against a contesting candidate or political party and the list goes on. Political violence was observed by BERSIH 2.0 but as in most complaints, the EC failed to act.

These gave BERSIH 2.0 the impetus to set up the tribunal and to allow an independent panel to establish if GE13 was indeed clean and fair.

People’s Tribunal

The Peoples’ Tribunal (herewith referred to as The Tribunal) mandate include investigating any violations of the rule of law and international standards of free and fair elections; whether such acts impacted on the election results; review the electoral process and to identify shortcomings of the Election Commission in delivering free and fair elections; and finally recommendations were to be made as a way forward.

A high-level panel of five judges was put together to conduct the Tribunal and they were:

  • Professor Yash Pal Ghai, Kenyan, Chair of Tribunal an internationally renowned and respected expert in constitutional law and human rights;
  • Professor Ramlan Surbakti, Indonesian, Professor of Comparative Politics at Airlangga University, Surabaya and former Deputy Chairman of the Indonesian Election Commission;
  • Datuk Azzat bin Kamaludin, Malaysian, Advocate and Solicitor of the High Court of Malaya and former Administrative and Diplomatic Officer with the Ministry of Foreign Affairs Malaysia;
  • Dr. Mavis Puthucheary, Malaysian, former Associate Professor at the Faculty of Economics and Administration, University of Malaya;
  • Rev. Dr. Hermen Shastri, Malaysian, Methodist Minister and the General Secretary of the Council of Churches of Malaysia (CCM).

A total of 75 key witnesses attested, including politicians, party officials, parliamentarian candidates, specialist NGOs, electoral experts, ordinary voters and many more. The proceeding was impressively led by BERSIH 2.0 lead counsel, Professor Gurdial Singh Nijar, with a dedicated team of lawyers as well as support from the BERSIH 2.0 organising committee members.

At the end of the proceeding, the Tribunal gave a damning conclusion: “there were multiple failings in the way GE13 was conducted, and that virtually every tenet of a fair election was violated at some place and at some time. Though the elections may have been “free” that was so in a rather narrow sense; that on polling day those who were registered and wished to vote were not hindered in doing so – and even that minimal concept of a “free election” must be qualified.” [People’s Tribunal Report, 2014].

Tribunal’s recommendations

The tribunal made strong recommendations and they are as follows:

1. Enfranchising voters

  • All eligible voters must have equal opportunity to vote, regardless of “where they live”.
  • Lower the voting age to 18 years old.
  • Clean up the electoral roll to eliminate suspicion of fraudulent registration and poor management of the electoral roll
  • The register by “regularly and scrupulously checked to make sure dead and other “phantom” voters are not included.” This process must be applicable to all states in Malaysia.
  • A review of the advance and postal voting process and that they be used only when strictly necessary.
  • Laws and regulations to be amended to ensure transparent and accountable registration of voters.

2. Gerrymandering and malapportionment

The Malaysian first-past-the-post is tarnished by bias gerrymandering and malapportionment, which does not uphold the principle of one person, one vote, one value.

  • Laws amended to secure the basic principles, clarify the criteria for boundaries and to accommodate sparsely populated areas.
  • Establish an independent Boundaries Commission to investigate, conduct public consultation and strengthen delineation process.

3. Contestation

  • The registration of political parties under the Societies Act should be replaced to allow for right to campaign and information as voters can then make their informed choices.
  • Legislation should require parties to have constitutions that provide for internal democracy in order to avoid hate speeches/messages, especially “in a volatile situation”.

4. Election finance

  • Political parties need to account for their election finances, including their sources of funds.

5. Free and fair access to the media

  • A need to include into the laws the principle of equal access to the media as well as fair representation by the media.
  • Restrict political parties to own methods of communication such as newspapers.

6. Meaningful campaign period

  • A need for public education against bribery, treating and undue influence as well as to take the issues seriously in the enforcement of the law.
  • A caretaker government has to be established to oversee abuses of government properties and resources, conduct during campaign period and promises of benefits or bribes.

7. Electoral processes

  • Better and proper training of the election staff so that they understand why procedures are instituted, e.g. indelible ink, advance and postal voting process and others.
  • Capacity of staff has to be built to cope with new challenges and responsibilities.

8. Election observers

  • Allow for domestic and international observers, based on clear criteria.

9. Independent Election Commission

  • Independent EC as well as in its “method of appointment, its operations and its mindset”.
  • EC need to be pro-active role to bring about changes.

10. Police and administration

  • Prosecution of election offences must be determined by a independently appointed officer and where its appointment is by the government and can be dismissed at will.
  • Vigorous enforcement of the laws must be complemented with substantive training for the police.
  • Mechanisms need to be developed to curb corruption or other forms of corruption during elections.

The tribunal recognised that violations found in the 13th.GE were not new and have happened before, except for the indelible ink. Their findings showed that there is a systemic flaw in the election laws, processes and the conduct of the institutions that were entrusted to manage elections. Principles and standards (including international standards) were not adhered to. According to the tribunal, “most important it (system) fails the people of Malaysia. The inescapable conclusion must be that GE13 fell short in every one of those seven[1] parameters for democratic election.”

Maria Chin Abdullah, Chair, BERSIH 2.0


[1] The seven parameters set by the tribunal were 1) equal representation guaranteed in apportionment and constituency boundaries, voter registration, and converting votes into seats; 2) electoral laws and regulations based on the democratic principles of election; 3) free and fair contestation; 4) participation of all stakeholders in the electoral process; 5) an independent and professional electoral management body for electoral governance; 6) electoral integrity in voting, counting, aggregating, and reporting results of election; and 7) electoral dispute resolution conducted in just and timely manner. {People’s Tribunal Report, 2014]