By Boo Su-Lyn | CodeBlue

A voter casts her ballot in the Johor state election on March 12, 2022. Picture from Suruhanjaya Pilihan Raya Malaysia  —  SPR FACEBOOK PAGE.

The right to vote is sacrosanct.

Voting is not an act of “personal interest”, but a collective act of “public interest” where every single Malaysian citizen aged 18 and above has the constitutional right to elect their state or federal government. Moreover, voting and elections are a highly regulated affair governed by federal election laws, unlike going shopping or clubbing.

Article 119 of the Federal Constitution only lists three conditions to disqualify someone from voting in an election: if they are detained as a person of “unsound mind”, if they are serving a sentence in prison, or if they are liable to suffer any punishment for conviction in any part of the Commonwealth of an offence and sentenced to death or imprisonment for a term exceeding twelve months.

The Federal Constitution does not list infection with an infectious disease, or suspicion of having an infectious disease, as a criterion to disqualify a voter.

Yet, a COVID-positive woman was prohibited yesterday from casting her vote in the Larkin state constituency of Johor during the state election when she arrived at her polling centre. To make matters worse, a Johor Health Department enforcement officer even compounded her RM1,000 for exercising her duty to vote on the basis that she broke quarantine, as her MySejahtera COVID-19 risk profile was red.

Another Johor voter tweeted that he was turned away from the special tent at his polling centre for voters with COVID, those suspected of having COVID, or those undergoing quarantine, even though his self-test was negative yesterday.

Johor state health director Dr Aman Rabu said in a statement on March 11 that COVID-positive patients “are not allowed to leave their place of treatment (hospital/treatment centre/quarantine facility/home or others to vote”. A poster by the Johor state health department even proclaims: “Positive COVID-19 cases are not allowed to be present to vote”!

While the Ministry of Health (MOH) has legal jurisdiction over the actions of people with COVID-19 in quarantine, MOH does not have authority over the conduct of voters and elections that are solely regulated by the Election Commission (EC) under federal election legislation.

Hence, Dr Aman’s directive to voters and the alleged act of the health inspector in Larkin who reportedly turned away a voter from a polling centre may possibly be a criminal offence under the Election Offences Act 1954 that prohibits election officers from “wilfully” preventing “any person from voting at the polling station at which he knows or has reasonable cause to believe such person is entitled to vote”. It is unknown if the health inspector in Larkin or the Johor state health director were appointed as election officers by the EC.

A poster by the Johor state health department that prohibits positive COVID-19 cases from going out to vote in the March 12 Johor state election. Graphic posted on March 11 on the Jabatan Kesihatan Negeri Johor’s Facebook page.

The EC’s March 7 standard operating procedures (SOP) for the Johor state election explicitly prohibits COVID-positive voters from leaving their place of treatment, including at home when they’re undergoing quarantine, to go out to vote, on the basis that they are “still infectious and can transmit infection to other people while still on treatment”.

EC’s SOP also requires voters suspected of being infected with COVID-19 – such as patients-under-investigation (PUI) and persons-under-surveillance (PUS) – to apply for permission from the district health officer to leave quarantine temporarily to go to the polling centre. “This approval is subject to the district health officer’s evaluation of the risk of infection and the voter must comply with all guidelines set by the MOH”.

Who is MOH to determine who can vote based on their “risk of infection”, when the Federal Constitution imbues the right to vote in every single adult Malaysian citizen regardless of their physical medical condition?

This requirement essentially allowed the government to interfere with the Johor election since district health officers, who are civil servants, could unilaterally determine who could vote and who couldn’t.

It is ironic that MOH endorses suspending voting rights over potential coronavirus infection when it repeatedly proclaims that vaccines are safe and effective in preventing severe disease and death from COVID-19. Even though positive COVID cases pose a risk of infection to others, those who contract the coronavirus will most likely be protected from serious outcomes because of vaccination. As of yesterday, 99.7 per cent of Johor’s adult population have been fully vaccinated, while a whopping 73.7 per cent have received boosters.

Both the EC and MOH could have come up with guidelines for positive COVID cases or close contacts to mitigate the risk of infection (without requiring MOH’s prior approval for close contacts to cast their ballot).

South Korea’s presidential election held just a few days ago facilitated a special voting time for positive COVID-19 cases and those in isolation, where they could cast their ballots at polling stations from 6pm to 7.30pm after regular voting close at 6pm. COVID-19 patients in South Korea could alternatively vote by mail.

The government’s plan to transition to endemicity acknowledges that COVID-19 will remain in Malaysia for the foreseeable future, which means that it is fine to get infected with the virus because most of us will not be sick enough to require hospitalisation as we have been vaccinated.

So which is it? Do vaccines protect us from severe disease and death, or are vaccines insufficiently protective that we must fear infection from a positive COVID-19 case at a voting booth? The government has to be consistent. Clarity of thought is important, especially for the government.

The EC’s SOP – which, according to an MOH spokesman, was “the result of multi-agencies’ discussion or advice” – potentially disenfranchised more than 20,000 voters in the Johor state election, as the CovidNow website states that 20,540 active COVID-19 cases were in home quarantine yesterday on polling day. Adults aged above 18 likely comprise the majority, though it’s unclear how many exactly. That number excludes PUI or PUS self-isolating at home that likely runs into the thousands as well.

Constitutional and election lawyer New Sin Yew told me that the EC’s SOP and the authorities’ actions of turning away voters with COVID-19 or suspected of having COVID-19 are “illegal and unconstitutional” because they do not have force of law.

“The conduct of elections is strictly governed by the Elections Act, the Election Offences Act, and its regulations. There is nothing in these laws that allow for the EC to block voters from voting when COVID-positive or close contact. The right to vote is one of our fundamental liberties; it cannot be wantonly deprived by the EC’s incompetence.”

New also pointed out that election legislations do not cite infection with an infectious disease, or suspicion of having an infectious disease, as reasons to disqualify one from voting.

The EC’s election SOP states that its legal authority is derived from Rule 16 of Regulation 293/2021 under the Prevention and Control of Infectious Diseases Act 1988 (Act 342). Rule 16 of the regulation, which was gazetted by then-Health Minister Dr Adham Baba on July 4 last year, states: “The Director General may, during any designated phase, issue any directions and conditions in any manner, whether generally or specifically, to any person or group of persons to take such measures for the purpose of preventing and controlling any infectious diseases within any infected local area.”

A similar provision is mooted as a new section 21A in the Act 342 amendment Bill that will, if passed by Parliament, enshrine the Health Director General’s absolute powers in principal legislation.

Yesterday’s apparent voter suppression in the Johor state election is a real-life application of the powers of the Health Director General that were used by the EC and MOH to supersede the Federal Constitution and election legislation.

“Can’t over-reach into election laws,” New told me, when I asked about the use of Act 342 as the source of legal authority for the EC’s Johor election SOP. “That is solely under the EC’s purview. Our Constitution is designed that way. Otherwise, the government can interfere in the conduct of elections.”

Taken to the extreme, unscrupulous politicians could seek access to the MySejahtera database and simply switch one’s COVID-19 risk status from blue to red for entire groups of voters based on their address to suppress voting in the upcoming 15th general election.

While MOH maintains that personal data stored in the MySejahtera app is treated as confidential patient information under the Medical Act 1971 and Act 342, the Personal Data Protection Act (PDPA) 2010 exempts the government.

This means that any access to the MySejahtera database unauthorised by MOH, for the purpose of influencing voters or interfering with elections, may not technically be illegal, if such access is obtained from any actors in government outside MOH.

EC Chairman Abdul Ghani Salleh and Health Minister Khairy Jamaluddin must reassure the public that anyone who contracted COVID-19 or close contacts of positive cases will be allowed to vote in future elections, as per their constitutional right, without needing to seek prior approval from the government to vote or to scan their MySejahtera for entry into polling stations.

What happened in the Johor state election may have been an egregious act of voter suppression and disenfranchisement sanctioned by the government (specifically, MOH) and the EC, an independent agency, that eroded Malaysian democracy.