Right to Vote in Malaysia: Can My Employer Refuse to Approve My Leave?
The 14th General Election (“GE14”) is before us. However, the Election Commission has fixed the polling to be held on 9th May 2018, a Wednesday. At the time of writing, there is no indication from the caretaker Federal Government on whether 9th May 2018 will be designated as a public holiday. Leaving aside the question of the propriety of setting polling date on a working day, many Malaysians are faced with these 2 questions:
1) Is an employee entitled to take time out/take leave in order for him to vote?
2) If yes, how many hours or days can the employee take?
Voting Rights as a Citizen
Article 119 of the Federal Constitution provides that a citizen of Malaysia is entitled to vote in the constituency that he is a resident (or where he is an absent voter) in provided that:
- He has attained the age of 21 years;
- He is a resident or an absent voter in a constituency; and
- He is registered in the electoral roll as an elector in the constituency in which he resides
(For the purpose of this article, we shall leave aside the discussion on absent voter)
For a citizen to be entitled to vote, he must fulfill all 3 requirements.
In other words, if a person’s name is not in the electoral roll for GE14, he would not be entitled to vote even if he fulfilled the other 2 requirements.
Time Out/Leave to Vote
Section 25 of the Election Offences Act 1954 provides that “…an 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…”
In non-lawyer talk, this means:
- An employer must give his employee reasonable time to go to vote; and
- The employer is not allowed to make any deduction from the employee’s salary.
In other words, the employer cannot deduct his employee’s annual leave or deem his employee’s leave as emergency leave or in any way to deduct his salary or leave entitlement.
However, there are 3 important qualifications:
- The obligation is only for the polling day;
- The employee is actually taking the time off to go to vote; and
- The employee is not obligated to give the employee any amount of time he claims to need. The time sought for must be reasonable. And what is reasonable is on case to case basis.
What if the Employer Refuses?
If an employer refuses to give his employee reasonable time to go to vote, he shall, on conviction, be liable to a fine of RM5,000.00 or to imprisonment for one year.
But I need More than 1 Day as I am Voting in My Hometown
Urban migration is common in Malaysia and many developing countries. It is common that a Malaysian, upon attaining the age of 21, registered himself to vote in a certain constituency, normally his family home, and thereafter migrate to another state or to another city to earn a living.
Thus, he may need more than a day to travel back to his hometown to vote, which would probably be the case for many in GE14.
The law as it stands however only imposes the obligation to the employer to give reasonable time to vote on the polling day only. If a voter needs more than 1 day, he would have to utilize his annual leave.
I am Working Overseas. My Employer Refuses to Approve My Leave
You may have heard of postal vote. If you have registered for postal voting, then you may proceed to utilize the service of postal voting. The application for postal voting for GE14 has been closed. You should take a mental note to apply for the same before the next closing date.
However, if you are residing in southern Thailand (Narathiwat, Pattani, Yala, Songkhla and Satun), Singapura, Brunei and Kalimantan Indonesia, you are not eligible for postal voting and would still have to return to vote.
Unfortunately, save for your employment contract, there is nothing to compel your employer if they refuse to approve your leave to return to Malaysia to vote.
Regardless of your political inclination, voting is an important part of the nation-building process. Where possible, do go out and make your voice be heard loud and clear.
Know your rights as a Malaysian citizen, a registered voter and an employee.
From Section 25 of Election Offences Act 1954
Employers to allow employees reasonable period for voting
25. (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.
(2) This section shall extend to employees of the successor company as defined in section 2 of the Railways (Successor Company) Act 1991 [Act 464] and the Sabah Railway except such as are actually engaged in the running of trains and to whom such time cannot be allowed without interfering with the manning of the trains; and the General Manager, shall, in each case, be deemed to be the employer of such employees.
(3) Any employer who, directly or indirectly, refuses, or by intimidation, undue influence, or in any other manner, interferes with the granting to any elector in his employ, of a reasonable period for voting, as in this section provided, shall on summary conviction be liable to a fine of five thousand ringgit or to imprisonment for one year.
(4) This section shall not extend to such categories of employees as the Election Commission may from time to time by notification in the Gazette designate.
(5) This section shall be binding on the Government of Malaysia and the Government of each State.
(6) In this section, “employer” has the same meaning as in the Employment Act 1955 [Act 265].
This article is written by our Partner, Loke Yuen Hong