M’sia’s electoral system: Govt of the people? (2)
By Tey Tsun Hang
(Part 1 of this article appeared yesterday.
Summary: The growth of the dominant political elite has had direct implications for the development of Malaysia’s electoral regime and arrangements for the holding of democratic elections. The perceived inefficiency of the Election Commission in administering elections – whether through impartiality or sheer ineptitude – could potentially lead to election outcomes which hardly reflect the true will of the people.)
IV. The apportionment and delimitation of constituencies – Gerrymandering as norm
The Federal Constitution places the responsibility of delimiting constituencies68 on the Election Commission.69 The delimitation of constituencies ought to be done according to clear guidelines by a neutral and independent Election Commission because electoral results can differ greatly according to how the lines are drawn. There are broadly two ways in which the power to delimit may be abused: firstly, mal-apportionment (where the size of the constituencies delimited are grossly disproportionate) and, secondly, gerrymandering (where a delimitation is made with a view to unfairly favouring a particular political party).70
Unfortunately, the Federal Constitution does not adequately spell out the guiding principles under which the Election Commission should carry out its duty in delimitation exercises.71 Vague and general guidelines give rise to inherent ambiguities that could work unfairly against contesting candidates. The vague usage of expressions such as “regard ought to be had”, “inconveniences attendant on alterations of constituencies”, and “maintenance of local ties” 72 without further elaboration leaves much to be desired in assuring consistent and fair delimitation practices.
It would hence not come as a surprise that the electoral process is susceptible to abuse through arbitrary and capricious definitions adopted by the Election Commission of the day. For instance, nothing in the guidelines obliges the Election Commission to strictly adhere to the equal-sized constituency doctrine in the delineation process. This gives rise to mal-apportionment where disproportionately-sized constituencies can be delineated to favour a particular political party.
The Malaysian electoral system fails to adhere to the one-vote-one-value principle in its elections. A rural weightage principle is constitutionally provided for in the Thirteenth Schedule of the Federal Constitution,73 thereby augmenting the value of rural electors’ votes and, as a result, diluting the perceived advantage (in terms of accessibility, connectivity and communication) their urban counterparts carry over them.74
However, the Federal Constitution does not define “rural” and “urban” for the purposes of constituency delineation.75 Not once has the Election Commission attempted to define what “rural” and “urban” areas actually mean in the course of the delineation exercises.
The problem is made worse by the removal of the limitation on the maximum allowable difference in the number of electorates between the rural and the urban constituencies.76
Prior to 1957, the maximum allowable difference between the number of electorates in a rural and an urban district was 33 per cent.77 Following the Reid Commission’s recommendations in 1957, the limitation was reduced to 15 per cent. This produced a closer adherence to an equal-sized constituency doctrine. However, this limitation was relaxed to 50 per cent in 1962 78 and eventually entirely removed in 1973, 79 resulting in Malay-based parties being given an electoral advantage.80
Some empirical analysis on electoral trends between 1960 and 1999 is sufficient to illustrate the Malay electoral advantage. The Malay population in Peninsular Malaysia was relatively stable, measuring to an average of around 55 per cent of the entire Peninsular Malaysian population.81 One would have expected that this would be proportionally mirrored in the corresponding percentage of Malay-majority constituencies. However, it was observed that notwithstanding the relatively constant percentage of the Malay population, the percentage of Malay-majority constituencies has seen a consistent increase over the years from the 1959 election to the 1999 election.82 This trend holds true at the Federal level as well.83
One possible explanation for such an electoral pattern is the increasingly liberal franchise rules flowing from the Federation’s gradual move towards liberalisation of citizenship requirements over the decades.84 This invariably resulted in decreasing the enfranchisement advantage that the Malays had over other minority ethnic groups. The ruling coalition saw the need to counterbalance this effect by adjusting the scale to maintain its electoral advantage over other opposition parties representing the minority non-Malay electorate. This could only be brought about through carefully engineered constituency re-delineations in a way that would enhance the political control of Malay-based political parties.85
With respect to Sabah and Sarawak, political competition is heavily skewed in favour of the Muslim bumiputras (including the Malays) vis-à-vis non-Muslim bumiputras and other ethnic groups. This has been made possible through a grossly disproportionate advantage given to the former that devalues the latter’s votes more drastically than the rural weightage imposed in Peninsular Malaysia.
In both states, no electorally advantaged community constituted the majority in their state constituencies.86 Malay-based political parties had the most to gain from this. Again, the success of Malay-based political parties in Sabah and Sarawak87 would not have been possible without biased re-delineation practices.
The rural weightage principle would have become the Umno-led coalition’s absolute trump card were it not for the opposition PAS (Parti Islam SeMalaysia). PAS is a predominantly pro-Islam Malay political party which primarily aims to attract Malay-Muslim votes. As such, the rural weightage principle becomes a double-edged sword in PAS-contested constituencies.
Umno runs a considerable risk of losing out to PAS, as evidenced by PAS’s historical success in diluting Umno dominance in the 1999 and 2008 elections. In the 1999 election, PAS secured a total of 98 out of 394 seats in both the Federal and State legislatures in Peninsular Malaysia, posing a real threat to the BN.88
In 2004, Umno’s apparent stratagem against the PAS came in the form of mal-apportionment and gerrymandering in the 2003 constituency re-delineation.89 The opposition charged, inter alia, that the effect of the constituency review was to diversify the ethnic composition in PAS-held constituencies so as to reduce PAS’s chances of securing victory in the 2004 election.90 True enough, it turned out that PAS suffered a huge setback, losing control over the state of Terengganu and securing only a marginal victory in Kelantan with a narrow majority of 24 out of 45 seats.91
With respect to one of the most contentious states,92 Kedah,93 it was shown that “[t[he 2002 delimitation process involved moving ‘safe areas’ in traditional Umno strongholds and non-Malays seats into constituencies that were vulnerable to the opposition and changing boundaries beyond the usual administrative areas in order to create constituencies that would strengthen the BN’s electoral position.” 94
Again, the 2002 re-delimitation exercise demonstrated how Umno became the beneficiary of a tactical dilution-through-diversification approach against PAS-held state constituencies in Kedah. Non-Malay wards deemed to be the BN’s “safe state seats” were fused with PAS-held constituencies in the redrawing of boundaries.95 For instance, the cross-administrative district transplantation of the Gurun state seat to the parliamentary state seat of Yan (renamed Jerai) was cited as a particularly egregious case of gerrymandering, the intention of which was to defeat PAS which previously won the seat in Yan by a slim majority of 0.7 per cent of the votes cast.96 The political impact of importing the “safe votes” from Gurun to Yan essentially boosted the BN’s electoral strength by an estimated 5,233 97 votes.98
A similar pattern was observed in the parliamentary seats of Pokok Sena, Kuala Kedah and Baling.99 The parliamentary seat of Alor Setar (which previously gave the BN an overwhelming victory of 14,384 votes) was employed as a buffer to absorb the state seat of Telok Kechai, neutralising the electoral disadvantage it provided the BN (in the parliamentary seat of Kuala Kedah) in the 1999 election. 100 The result of the 2004 election, as one might have expected, was a crushing defeat for PAS.101
A revival of the limitation on the variation in the numbers of electorates between rural and urban constituencies has to be the primary focus of reform. It is not logical to assume that rural areas invariably remain rural in light of the relentless pace of urbanisation in Malaysia. This is sufficient to justify imposing a limitation – with the prospect of increasing equalisation – on the variation in electorate size between rural and urban areas.
As mentioned earlier, constitutional amendments over the years have gradually eroded the Election Commission’s status as an independent administrator of the electoral process. For instance, the dissatisfaction by the Alliance over the Election Commission’s Report of 1960 to re-delineate constituencies and reduce the number of seats in the House of Representatives from 104 to 100 was reversed by a constitutional amendment passed in Parliament. 102
This showed how easily the Election Commission’s actions in delimitation could be reversed by dissatisfied political parties in power. This ‘thwarting mechanism’ makes a convenient tool for the ruling party to fine-tune any changes brought by the Election Commission to its own political advantage. The Election Commission’s powers to delimit constituencies were also seriously constrained with the addition of the Thirteenth Schedule to the Federal Constitution, which effectively confined the Election Commission to reviewing only the division of the Federation and states into constituencies and recommending necessary changes.103
Also, the Election Commission’s recommendations are now required to be submitted to the Prime Minister who reserves the right to alter the recommendations even before they are submitted to the House of Representatives. 104 If the House of Representatives does not accept the recommendations, the Prime Minister may amend it “after such consultation with the Election Commission as he may consider necessary”.105 The recommendations for delimitation need only be objected to by one-half of the members in the House of Representatives, and neither the Senate nor the Upper House (Dewan Negara) need to be consulted.106
Even though the public may under appropriate conditions submit its objection to any recommendations proposed, thereby obliging the Election Commission to conduct a local enquiry in respect of the relevant constituencies,107 the Election Commission may not conduct more than two such local enquiries. 108
Other later changes109 include a prescriptive approach undertaken by Parliament as a prerogative to apportion the seats amongst the states of Peninsular Malaysia,110 as well as the removal of the limitation in the variation in electorate numbers between the rural and urban constituencies.111 The exercise of the Election Commission’s powers has since been relegated to the residual task of delineating constituencies within every state. The more important macro prerogative of apportioning seats in the House of Representatives is acquired by Parliament.
More recent changes112 have further relaxed the rules regarding periodic review of constituencies by allowing a special review of constituencies to be undertaken for any state, or part of a state, whenever the House of Representatives or any state assembly varies the number of its seats.113 Additionally, the upper limit for mandatory periodic review of constituencies has been removed, giving rise to the possibility that constituencies may turn static should the Election Commission decline to initiate a review. The consequence of these changes is to enable the ruling party to effect any change to the constituencies at practically any time.
This substantial whittling down of the constitutional role of the Election Commission and the considerable transfer of constitutional power to Parliament runs counter to the notion of an independent and effective Election Commission, capable of discharging the independent and neutral administration of elections. 114
V. Manipulating the electoral rolls – Of ‘missing’ and ‘phantom’ voters
One essential area of the administrative role115 of the Election Commission that has been subject to heavy criticism is its preparation and revision of the electoral rolls prior to the elections. The registration of electors is generally governed by the Elections (Registration of Electors) Regulations 2002.
Of the most serious concerns is the existence of evidence that the Election Commission has been responsible for manipulation of the electoral roll. For instance, it was estimated that the total number of the electorate in Peninsular Malaysia, after seeing a steady increase in the past years, suddenly suffered a sharp drop of approximately 8 per cent after the 1973-1974 registration exercise.116 Numerically, this translated into approximately 330,000 names being dropped out of the electoral roll.117 Out of these 330,000 names removed, a majority consisted of non-Malays. This effectively resulted in a wider gap between the Malay-majority voters and the minority non-Malay voters.
In 1990, it was similarly observed that irregularities in the electoral roll affected about 300,000 voters.118 In 1999, approximately 680,000 registrants were reportedly deprived of their votes owing to late certification and endorsement by the Election Commission. 119 These potential voters were widely seen as opposition supporters.
Criticisms pertain also to the accuracy of the electoral rolls for the purposes of election. Frequent observations have been made about the electoral rolls containing “missing voters” 120 and “phantom voters”. 121 Not infrequently the electoral rolls contained voters who were deceased or whose addresses were traceable to one single – sometimes non-existent – address.122 Additionally, there have been several occurrences showing different voters registered under the same identity card number. More serious still, there was evidence that ineligible voters were found to have been registered under forged identity cards. The Election Commission admitted to a systemic defect when it revealed that there was in fact more than one version of the electoral roll used for the same general election.123
In spite of having technological support in updating the electoral rolls months before the actual polling, the Election Commission often failed to keep the electoral rolls up-to-date on polling day. This was notwithstanding the efforts by the Election Commission to boost its accessibility to the public by allowing voters to check their voting statutes via the Internet or Short Messaging Service (SMS).124 Often, these shortcomings are attributed to the Election Commission’s website failing to provide critical information of voters’ assigned polling centres, the inaccessibility of the website days before the election campaigning is to end, and the failure of the system to reply to SMS enquiries on polling day itself. 125
As for the actual conduct of elections, there have been reports of voters being misled by false information and realising too late on the day of polling that their names were actually registered under a different constituency in which they did not reside.126 Such situations not only served to confuse the voters but also brought huge inconvenience to them through last-minute shuffling between polling stations just to get their ballots cast. In the course of such confusion, it can be expected that many ballots would have gone uncast on the actual day of election. Disorganisation, unreliability and lack of transparency seemed to be the order of the day.
This has a direct impact on the integrity and competence of the Election Commission. The reputation and image of the Election Commission have been seriously tarnished and marred for years. Doubt soon evolved into distrust and more recently it has escalated to contempt.127 This has raised serious concerns about whether the outcome of the elections depended not on the voters, but the Election Commission.128
The Election Commission, in its defence, claimed that practical difficulties are to blame for its perceived poor performance.129 It claimed that “phantom voters” arise because voters failed to update the National Registration Department (NRD) about changes in residential addresses, and the failure by relatives of deceased voters to report the deaths of their family members to the NRD.130 As regards voters bearing the same residential addresses, the Commission explained that this arises because many rural residents register their addresses collectively under some prominent nearby location out of convenience. Since the preparation of electoral rolls is very much reliant on the statistics and information fed by the NRD, the Election Commission claimed that there is little it could have done to prevent such discrepancies.131
The Election Commission also blamed the absence of a provision in the law to vary or remove any registered voter from an electoral roll other than deceased voters,132 unless it was done with the consent or at the request of the voter, even where it was aware that maintaining the voter in the roll would result in inaccuracy. The Election Commission also blamed the citizens for their poor attitude in the presentation of proper facts such as their residential addresses.
Indeed, it would be unconstitutional for the Election Commission to vary the electoral rolls of living eligible voters, as it would be tantamount to interfering with the voters’ rights and privileges as guaranteed by the Constitution where they had already met the requirement of the “qualifying date”.133 However, such practical difficulties are not valid excuses for irregularities in the electoral roll.
The law may be reformed to provide for stronger enforcement of compulsory registration and oblige eligible voters to take their own initiative in updating any changes in their personal particulars, such as their residential addresses. Voting procedures may also be improved. For instance, the plan to introduce indelible ink and transparent ballot boxes in the 2008 election could have pre-empted electoral abuses;134 this plan was, however, cancelled days before the election. Much has to be done to restore public confidence in the Election Commission.135
(Assoc. Prof. Tey is director, Centre for Commercial Studies at the National University of Singapore.)
Tomorrow: Challenging the accuracy of the electoral roll by way of a public inquiry, and election petition by way of judicial review as well as safeguarding the fair implementation and enforcement of the election laws.
Yesterday, Part 1: Inherited election laws and how the EC is manipulated, constrained and inept
Tey, Tsun Hang (2010) "Malaysia's Electoral System: Government of the People?," Asian Journal of Comparative Law: Vol. 5: Iss. 1, Article 11.
DOI: 10.2202/1932-0205.1279 Available at: http://www.bepress.com/asjcl/vol5/iss1/art11
68 The suggestion of a radical system change to some form of proportional representation is politically not feasible, although it is the only effective way of solving the problem of unfairness in constituency delineation. A complete switch to proportional representation, judging by the past election results, would certainly deprive the ruling coalition of its two-thirds majority. See Lim Hong Hai, supra note 7 at 103.
69 Article 113(2) of the Federal Constitution.
70 See Lim Hong Hai, supra note 23 at 265.
71 It should, however, be noted that apportionment of parliamentary constituencies between the various states are no longer part of the Election Commission’s role following the 1973 amendments: see Article 113(2) of the Federal Constitution.
72 Clause 2 of the Thirteenth Schedule to the Federal Constitution.
74 Technically, such a principle serves to assign more weight to the rural votes due to difficulties such as accessibility and outreach of the government to electors in the rural areas. However, because most Malay electors are concentrated in the rural areas, the rural weightage principle has been more conveniently exploited to favour Malay-majority parties in the elections. The resulting effect of such ethnic politics is the inclusion of more non-Malay-majority parties (such as the Chinese-based MCA and the Indian-based MIC) into the Alliance (or now the Barisan Nasional) who otherwise would be unable to secure parliamentary and state assembly seats in the government. Today, the ruling coalition has grown from a coalition of 3 parties to a coalition of 14.
75 Clause 2(a) of the Thirteenth Schedule.
76 Clause 2(c) of the Thirteenth Schedule as amended by Constitution (Amendment) Act (No. 2) 1973; it now simply states inter alia: “a measure of weightage”.
77 The maximum weightage on votes allowed was 2:1 for the rural constituencies from 1955 to 1957.
78 Constitution (Amendment) Act 1962.
79 Constitution (Amendment) Act (No. 2) 1973.
80 The result is that a smaller population of the rural voters would lead to a higher weightage assigned to their votes.
81 Lim Hong Hai, supra note 7 at 129.
83 Lim Hong Hai, supra note 23 at 268.
84 Lim Hong Hai, supra note 7 at 129.
85 For a detailed study on the percentage of Malay-majority constituencies broken down to the various Peninsular Malaysian states, see Lim Hong Hai, supra note 7 at 131.
86 Lim Hong Hai, supra note 23 at 270.
87 More particularly Sabah: see ibid at 271.
88 Tunku Sofiah Jewa, Malaysian Election Laws vol. 3 (Kuala Lumpur: Pacifica Publications, 2003) 1871.
89 See Lim Hong Hai, supra note 23 at 271. For a detailed breakdown of the delimitation exercise, see online: <http://www.aliran.com/oldsite/monthly/2002/8f.html>. It must be noted that the re-delimitation exercise began in early 2002, and was finally approved by parliament with minor changes in April 2003.
90 Ibid. See also “Motion on EC proposal passed”, New Straits Times (Malaysia), 9 April 2003.
91 Farish A. Noor, Islam Embedded: The Historical Development of the Pan-Malaysian Islamic Party PAS (1951-2003) vol. 1 (Kuala Lumpur: Malaysian Sociological Research Institute, 2004) 72. See also online: <http://en.wikipedia.org/wiki/Parti_Islam_Semalaysia>.
92 Ong Kian Ming & Bridget Welsh, “Electoral Delimitation: A case study of Kedah” in M. Puthucheary & N. Othman eds., Elections and Democracy in Malaysia (Bangi, Selangor: Penerbit Universiti Kebangsaan Malaysia, 2005) 316.
93 Comprising a “predominantly rural Malay majority with pockets of non-Malay urban areas”: ibid.
94 Ibid at 317.
95 Ibid at 321.
96 See online: <http://www.aliran.com/oldsite/monthly/2002/8f.html>.
97 A figure based on the 1999 election results.
98 Ong Kian Ming & Bridget Welsh, supra note 92 at 339.
101 Compare ibid at 322 with 343.
102 Constitution (Amendment) Act 1962.
103 Article 113(2) of the Federal Constitution.
104 Clause 9 of the Thirteenth Schedule states: “As soon as may be after the Election Commission have submitted their report to the Prime Minister under section 8, he shall lay the report before the House of Representatives, together (except in a case where the report states that no alteration is required to be made) with the draft of an Order to be made under section 12 for giving effect, with or without modifications, to the recommendations contained in the report”.
105 Clause 11 of the Thirteenth Schedule.
106 Clause 11 of the Thirteenth Schedule; this is despite having a bicameral system of government.
107 Clause 5 of the Thirteenth Schedule states: “Where, on the publication of the notice under section 4 of a proposed recommendation of the Election Commission for the alteration of any constituencies, the Commission receive any presentation objecting to the proposed recommendations from (a) the State Government or any local authority whose area is wholly or partly comprised in the constituencies affected by the recommendation; or (b) a body of one hundred or more persons whose names are shown on the current electoral rolls of the constituencies in question, the Commission shall cause a local enquiry to be held in respect of those constituencies”.
108 Clause 7 of the Thirteenth Schedule.
109 Constitution (Amendment) (No. 2) Act 1973.
110 Article 46(2) as amended by Constitution (Amendment) (No. 2) Act 1973, s. 12.
111 Clause 2(c) of the Thirteenth Schedule now states: “the number of electors within each constituency in a State ought to be approximately equal except that, having regard to the greater difficulty of reaching electors in the country districts and the other disadvantages facing rural constituencies, a measure of weightage for area ought to be given to such constituencies”.
112 Constitution (Amendment) (No. 2) Act 1984.
113 Article 113(3A) of the Federal Constitution.
114 Another such anti-democratic example was the abolition of local government elections within every state since the 1960s, and the subsequent replacement of the nominative local government system which eroded grassroots democracy and undermined the transparency of the nomination process which has considerable impact on the interests of the local population and citizens: see Goh Ban Lee, supra note 25 at 49; Heikal Abdul Mutadir, “Rapping Local Councils” (Sep 16, 2006) Malaysian Business 52. This “demise” has effectively blocked out and excluded intervention by the Election Commission to administer the local government elections, thereby leaving the filling of local government official seats to the state assemblies who would most probably be politically biased since their members are essentially members from the various contesting political parties in the federal elections. A revival of local democracy is unlikely in spite of recent calls for a re-introduction of elections at the local government levels: “A Thinking Voter’s Checklist” (2004) 24(2) Aliran Monthly 22 at 23.
115 Section 5(1)(a) of the Elections Act 1958.
116 Lim Hong Hai, supra note 7 at 116.
117 See for example Ong Kian Ming, “Examining the Electoral Roll” in M. Puthucheary & N. Othman eds., Elections and Democracy in Malaysia (Bangi, Selangor: Penerbit Universiti Kebangsaan Malaysia, 2005) 294, estimating a figure of around “230,000 fewer voters in the 1974 electoral rolls compared to the 1972 electoral rolls”.
118 Lim Hong Hai, supra note 23 at 272.
120 “Missing voters” has been defined as “qualified and registered persons whose names are improperly missing from the electoral rolls”: see Lim Hong Hai, supra note 7 at 115.
121 “Phantom voters” has been defined as “non-qualified persons who have nonetheless successfully registered and placed themselves on the electoral rolls”: see Lim Hong Hai, supra note 7 at 115. See also Ong Kian Ming, supra note 117 at 304; Salbiah Ahmad, “Some legal aspects of the electoral system” in M. Puthucheary & N. Othman (eds) Elections and Democracy in Malaysia (Bangi, Selangor: Penerbit Universiti Kebangsaan Malaysia, 2005) 346. Sabah has probably the worst such occurrences of “phantom voters” historically with several suspicious surges in registered voters prior to each election: see Francis K.W. Loh, “Electoral Politics in Sabah, 1999: Gerrymandering, ‘Phantoms’, and the 3Ms” in Francis K.W. Loh & Johan Saravanamuttu eds., New Politics in Malaysia (Singapore: Institute of Southeast Asian Studies, 2003) 240-2.
122 See for example Ong Kian Ming, supra note 117 at 298, observing further that these residential addresses often indicated multiple registered voters belonging to various racial groups.
123 See Jeff Ooi, “e-Election? Not so Fast” (1 April, 2004) Malaysian Business 9.
126 Such a problem has been occurring in every election. Even in the 2004 elections, there have been reports of inconsistencies in the electoral rolls such as missing voters’ names and wrong particulars of voters, thereby hindering the voting process and denying voters of their right to vote on polling day: see ibid; A. Kadir Jasin, “Improving on the Record” (1 April, 2004) Malaysian Business 7. See also “Voters ‘not being planted’ in opposition seats”, New Straits Times (Malaysia), 30 November 2007.
127 See for example, Philip Khoo, “A Brave New World? Worrying Implications for Democracy” (2004) 24(3) Aliran Monthly 2 at 4; “Polls chief: I’ll quit if there is proof of vote-rigging”, New Straits Times (Malaysia), 20 November 2007; “Anti-govt groups planning three more protests next month”, The Straits Times (Singapore), 30 November 2007; “Look at yourself, polls chief tells losers”, New Straits Times (Malaysia), 3 December 2007.
128 See “Let’s talk, Election Commission tells parties”, New Straits Times (Malaysia), 23 April 2007.
129 See a detailed defence in “Issues in Malaysian Election with Special Reference to Pertinent Aspects of the Electoral Roll System” by Ab. Rashid bin Ab. Rahman, 2006, Chairman, Election Commission, Malaysia, Ecm 8/9/06.
130 “Commission cannot remove names of ‘dead’ voters”, New Straits Times (Malaysia), 5 December.
132 This must nonetheless be substantiated with proof of death of the voter: see ibid.
133 Article 119(4) of the Constitution states that: “qualifying date means the date by reference to which the electoral rolls are prepared or revised”.
134 “Don’t Go for Outdated Voting Procedures, says Chia”, Bernama Daily Malaysian News, 4 June 2007; “Transparency begins with see-through ballot boxes”, New Straits Times (Malaysia), 2 June 2007.
135 See for example, “Use of indelible ink a ‘backward’ step”, New Straits Times (Malaysia), 6 June 2007.