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How much time-off to vote? — Surendra Ananth

APRIL 10 — Polling day is on May 9, 2018, which is a Wednesday. One of the most immediate concerns is whether an employee can take time-off to vote. This is even more crucial for those voting in other states, especially in Sabah and Sarawak.

Section 25(1) of the Election Offences Act 1954 mandates all employers to allow every employee (who are electors) a “reasonable period for voting”. The said section provides:

“(1) Every employer shall, on polling day, allow to every elector in his employ a reasonable period for voting, and no employer shall make any deduction from the pay or other remuneration of any such elector or impose upon or exact from him any penalty by reason of his absence during such period”

The penalty for contravening the provision is “a fine of five thousand ringgit or to imprisonment for one year”

The apparent question that arises is what does “reasonable period” mean? The act does not define the phrase. I could not come across any similar examples (same type of law) in other jurisdictions where such a phrase is defined. For example, in the United States, different states have different laws on the subject. Some state laws specify the period and some state laws do not.

This is understandable. No law or court specifically defines what “reasonable” means. What they do is however set out wide parameters of what amounts to “reasonable”. Other laws in other countries which contain the phrase “reasonable period” have been construed in the following way:

  1. It must be applied on a case to case basis on the facts of each case;
  2. In so applying the phrase, one must do so to ensure that the object of the provision is not defeated;
  3. The realities and potential difficulties must be taken into account.

Those cases deal with different laws concerning private transactions. However, there is no reason to say that such considerations should not equally apply to an election law. In fact, a more liberal reading of the phrase “reasonable period” should be preferred for such a law for the following reasons

  1. Section 25 seeks to ensure that the right to vote can be exercised;
  2. The right to vote is a fundamental right guaranteed under Article 119(1) of the Federal Constitution.
  3. All ordinary laws must be interpreted in a manner to ensure that fundamental rights can be exercised.
  4. Provisions in a statute must also be interpreted in line with its object. The object of the Election Offences Act 1954 is clearly to uphold democracy

Based on the above, no fixed time frame can be forced on the phrase “reasonable period”. It must be construed liberally and generously to ensure that a particular voter is allowed sufficient time for her/him to vote. This must be done on a case to case basis. If a voter is voting in the same state, perhaps a few hours is sufficient. If a voter working in Peninsular Malaysia has to vote in Sarawak, this might mean the whole day.

I note that the section starts with the words, “on polling day”, which seems to suggest that any time-off is only limited to the 9th of May 2018. It will be difficult to argue that a voter (working in Peninsular Malaysia) voting in distant state is entitled to have time-off on the day before. However, my view is that the section can be construed liberally to include the day before to accommodate travel time to ensure that the purpose of the provision is fulfilled, i.e. to allow for the employee to vote. To construe it otherwise would be to defeat the very purpose of the provision and to render it illusory.

Ultimately, it must be remembered that we are speaking of a fundamental right which forms the root of any functioning democracy. Laws, policies and day-to-day matters must give way to fundamental rights, and not the reverse. After all, this only happens once in 5 years. Oh wait! This particular choice of day is a first!

*This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.

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