It is a credit to the Election Commission (EC) to be thought of as the guardian of anything and everything to do with elections. I am referring to the call to the EC to take action on the Barisan Nasional (BN) 'election' billboard in Penang which depicted a cross-checked box next to a photograph of Premier Abdullah Ahmad Badawi . The billboard bore the caption, 'Undilah Barisan Nasional' (Vote for BN).

But lo and behold, we are rudely awakened by the statement by EC chairperson, Abdul Rashid Abdul Rahman that the EC has "no jurisdiction" over the matter as it is not an offence under the Election Offences Act. Abdul Rashid did helpfully point to the direction of the local council. The Penang Municipal Council however, was no wiser claiming no knowledge of the said billboard.

Abdul Rashid is no new kid on the block. Nevertheless, we might query if an Austinian approach is useful as the EC, quite unlike the recently set-up Police Commission for example, is ordained by none other than the supreme law, the Federal Constitution. By that reason alone, is it not a different breed altogether?

The EC is constituted primarily to conduct elections and to prepare and revise electoral rolls. These functions are elaborated under federal laws, the Election Offences Act being one such law. The EC may make rules under the respective federal laws in relation to these several functions. Rules so far relate to voter registration and conduct of elections.

The EC has been exceptionally busy post the 1999 election. This is due to the unprecedented number of by-elections and the equally unprecedented number of amendments (some 45 changes) to the electoral laws including a re-delineation exercise in 2002-2003. There has been a visible engagement with the press on account of election petitions and public concerns on phantom or "wrongly- registered" voters on the roll.

This visibility is commendable as it helps public confidence in the EC. Transparency builds public confidence in our institutions. There has been a marked involvement of the public and supporters of political parties with the EC and the electoral process post 1999. Malaysians today are probably more aware of the powers and limitations of the EC.

EC's limitation

While it is custodian of a free and fair election, the EC as Abdul Rashid observes, has no jurisdiction over the BN 'election' banner in Penang before the elections. The Election Offences Act prescribes for "electoral offences and corrupt and illegal practices at elections". If this is a limitation of the EC, it is a matter to be taken up by interested parties if sections of the public think it is warranted.

Until then, perhaps such a complaint may be received by the Human Rights Commission or Suhakam. Its mandate under a federal law, the Human Rights Commission of Malaysia Act, 1999 is for the "protection and promotion of human rights". More specifically, it is empowered to "inquire into complaints regarding infringements of human rights". Upon a disclosure of an infringement of human rights, Suhakam is empowered to refer the matter to the relevant authority with the necessary recommendation.

In Suhakam's first year of operation under Musa Hitam, it held consultations with the public in terms of inquiring into the widest possible understanding to its mandate. I remember the first consultation with Mehrun Siraj, at the helm.

Perhaps there is a useful role for Suhakam pending and during the next election. Human rights defenders and the ordinary voter may wish to explore the several legal and 'extra-legal' or alternative strategies pertaining to both the EC and Suhakam in the preservation, enforcement and monitoring of a free and fair process in due course.

Party expenses

The concern of voters on political advertising such as the recent one in Penang by BN is not new.

In the recent past, BN took out political advertisements in most of its controlled press with no similar access given to the opposition, even if they had the money to pay for them. These were in addition to what was perceived by commentators and opposition politicians as advertising for the BN on national television. A quick archive search can verify these.

This BN exercise may be repeated this election year, if it hasn't already as evidenced by the 'election' billboard in Penang.

Under election law, political parties are not legally obliged to include party expenses as campaign expenses. In the last amendment exercise, there was much concern all around of those outside the government, that this was not addressed. (Mkini July 25, 2002 " EC wants greater powers to counter negative view "?)

What seemed like a slap in the face to these concerns, is the increase in the ceiling allowed for expenditure of the election candidate in electoral law amendments.

In the Bukit Begunan (Sarawak) election petition case in 1997, the election judge noted the evidence of excessive spending by the party in relation to the candidate. However there was no evidence that this expenditure was that of the candidate or his election agent. Election judge, Ian HC Chin in that case said: "My answer is that the court has to interpret the law as it is. If there is a lacunae, then it is up to the power that is to do the necessary."

EC's Independence

Little is known if the EC had made any recommendation at all to the government in this regard. The fact that this specific concern of party expenses was left by the wayside in the last round of amendments, does not endear the EC to voters and opposition politicians.

The EC might want to share which of its proposals to changes in the law were rejected by the government. We also see little sharing by the EC of provisions in the Election Commission Act which might impair its independence and transparency. Why has the EC not raised concerns on the provisions of privileging of communication and unauthorised publications? These restrictions make the EC accountable to the government rather than Parliament or the electorate.

Former Law dean at Univerisiti Malaya Sothy Rachagan in "Law and the Electoral Process in Malaysia" (1993) has this observation of the EC: "The Election Commission's conduct in recent years suggests three possibilities - it is doing what it has been specifically instructed by the government to do; it chooses to do what it thinks will help the Government; it independently shares the government's view of what is in the national interest."

Campaign expenses at elections aside, the issue of political advertising was sought to be addressed sometime in the last year or so through discussion in the media between opposition politicians and the EC. Abdul Rashid was of the view that changes in broadcasting law may be the answer.

A law is only as good as its enforcement. There are still far too many institutions to be worked on regardless of the rumored dawn of a blessed new era. Having more laws may not be the desired, immediate concern.

Free Speech

The example of voter protest of the BN 'election' billboard in Penang is encouraging. Public dissent of policies deemed unfair is an important indication of a vibrant civil society and these types of concerns, actions and responses need not wait for an enabling law.

Access to and freedom of information, discussion and participation in political life (not limited to party politics), are still the fundamentals to a robust civil society.

The putting up of that 'election' billboard involves free speech and free speech is a human rights issue.

As the government in power, the BN has powers and resources that are unavailable to private power. Opposition politicians when contacted, shared opinions of discrimination by local councils. They are not accorded the same access or the same opportunities.

The decision to allow that billboard to be established is reflective of the dominance in the market-pace of ideas of those with greater resources. This offends among others, the principle of fairness or equality in free speech.