There was intense disquiet after the 13th General Election in May 2013.
There were mass gatherings. There were allegations of unequal access to media; of erasable ink; of wrongful use of government machinery; of vote-buying; of ‘directed’ postal votes and advance votes; of phantom voters; of unauthorized changes to voters’ constituencies; of mischief during vote-counting; and much more.
Politicians from all sides petitioned the Elections Court to nullify results.
Was the disquiet lit by moral arsonists or was it lit by moral outrage?
GE13 was remarkable because many members of civil society participated as monitors. They weren’t unemployed youths; they were from all walks of life, across all ages. NGOs (e.g. Tindak Malaysia) had trained Polling and Counting Agents. NGOs (e.g. Pemantau) had organized to collect feedback from across the nation about the conduct of the elections. NGOs (Bersih) had demonstrated en masse to express the disgust and horror they felt about the Electoral Register.
I wish I could write that the government’s response to the voice of the people was nothing more than to shower them with odium. Sadly I have to write that the government showered them with arrests, threats, tear gas and acid-laced water.
The Election Commission (EC) has not satisfactorily explained the erasable ink. No one has taken responsibility. Despite voluminous police reports, no one has been charged.
The Malaysian judiciary has placed technicality above morality. The majority of election petitions – from all sides – have been thrown out on technicalities. Worse, the courts have ordered unsuccessful petitioners to pay massive sums for petitioning the courts.
The police and the Attorney General are disinterested. No one has been prosecuted.
The EC lacks credibility and moral authority. The police look the other way. Judges (unlike their activist brethren in India) don’t want to be troubled by morality.
Citizens have only individual means to lodge protests and seek redress; there are thousands of reports, letters and comments directed to officialdom. All by individuals.
Until the People’s Tribunal, there was no mechanism to look objectively at the big picture and deliver a verdict on whether the disquiet is truth-based moral outrage. The final report of the Tribunal explicates the reason-for-being of the Tribunal:
“BERSIH 2.0 conceived the Tribunal as “essentially a citizen’s effort and a people’s platform to investigate the conduct of the last general election,” and as “a Tribunal of conscience, mandated with a moral force by the people to arrive at the truth.” It set up the Tribunal to investigate the truth and to give the people the opportunity “to make their voices heard” and to provide “a platform for evidence to be presented and scrutinized, while inaccuracies are exposed and facts sifted from a sea of allegations. The People’s Tribunal ensures that truth will not be a casualty.”” (Page 6)
A helpful analogy for the reason-for-being of the Tribunal has been suggested by Professor Gurdial Singh Nijar, lead counsel at the Tribunal. He says the Tribunal does what no other institution does: the Tribunal, comprised of eminent, credible, unbiased persons, looks at all the facets of the disquiet which arose in GE13. Looking from many angles, taking everything together, the Tribunal draws a conclusion.
The Tribunal convened a hearing over 5 days in September 2013. It was provided with much evidence.
The word “evidence” is appropriate, as it includes the personal testimony of witnesses, with cross-examination; it includes sworn affidavits, Statutory Declarations; it includes petitions filed by all sides in each disputed election outcome; it includes nation-wide reports and assessments by independent observers (as opposed to isolated cases).
The evidence was gathered, sifted and presented by Professor Gurdial and a team of about forty lawyers.
Note: Professor Gurdial who teaches law in University Malaya, was also the Chief Prosecutor for the Kuala Lumpur International War Crimes Tribunal (IWCT). The IWCT was sponsored by Tun Mahathir, architect and builder of guilt-ridden Malaysia.
The members of the Tribunal were not push-overs. At the close of the Tribunal’s hearings, the government-aligned The Star Online observed with glee:
“A heated argument erupted between the final witness, Ambiga and penal [sic] member Datuk Azzat Kamaludin, when the latter suggested that the duty to keep the elections fair and clean did not just fall on EC.
He insinuated that Malaysians, especially elected representatives, should do their pars [sic] to ensure that the whole process is credible, to which Ambiga strongly disagreed.”
The Tribunal took six months to draw a conclusion.
Tribunal members, lawyers, witnesses, and assistants all worked without emoluments; all they received was reimbursements for logistics expenses. They were not paid for their time before, during or after their service to the nation. They were beholden to no one.
The Tribunal was handicapped by the refusal of the EC and members of Barisan Nasional to participate in the hearings.
Prof. Gurdial explained that the rules of procedure and evidence applied during the proceedings conform to international standards, including those applied in the inquiries into the Sabra and Shatila massacre (on 16 September 1982 in Lebanon).
It is instructive to recall that the Israelis were outraged that the Israeli Defence Force (IDF) had instigated or at least stood by and watched, even smirked, as thousands of Palestinians were brutalized, murdered, buried and carted away.
Israelis turned out en masse to express their moral outrage over what had been done. On 25 September 1982, the Peace Now movement organized “the march of 400,000” (link to The Jerusalem Post article on 23 September 2012).
The voice of the Israelis was heard. Three days later Menahem Begin, the Prime Minister, responded to their moral outrage. He announced the Kahan commission. The Kahan report found the IDF, Ariel Sharon, Yitzhak Shamir, Rafael Eitan and others culpable.
The Kahan commission could call witnesses, including those to whom blame was eventually assigned. The GE13 Tribunal’s inability to call witnesses was lamented at yesterday’s public meeting at which the Tribunal handed over its report to Bersih 2.0.
The mood at the meeting was akin to that in a courtroom in which a mother accuses an absent father of abusing the children. It was akin to proceeding with the hearing despite the father’s refusal to attend or even make representations via counsel.
The multiple facets of the people’s disquiet have been reviewed by a panel of eminent persons including 2 persons trained in the law (Prof. Yash Pal Ghai from Kenya and Datuk Azzat), one former Deputy Chairman of the Election Commission of Indonesia (Prof. Ramlan Surbakti), one retired academic (Dr. Mavis Puthucheary) and one religious leader (Rev. Hermen Shastri).
A 92 page report and a Compact Disc with supporting evidence has been compiled. It will be sent to the Election Commission, parliamentarians and others.
The Tribunal concluded that the people’s disquiet was lit by moral outrage, not immoral arsonists; that the EC has been derelict in its duties, allowing itself to be used as an instrument for the ruling party to entrench itself. The report closes with these words:
“The . . . EC needs to be re-designed, and conceived as a truly independent body. Other countries have done it. It is from the EC that true change will come; without them no serious improvement will take place.
At present the system fails to meet international standards in many respects. Most important (and in violation of what those international standards are designed to achieve) it fails the people of Malaysia.”
After careful consideration the Tribunal has concluded that the disquiet was lit by the people’s moral outrage. How will the EC and the government respond? How will they measure up against the 1982 government of Israel?