The Influence of Electoral Laws On The Conduct Of Elections In Malaysia

Ng Chak Ngoon
Tindak Malaysia

ngcn@tindakmalaysia.com
Abstract

Malaysia is ostensibly a democratic country in which elections are generally peaceful and
held regularly as prescribed in the Constitution and in accordance with electoral laws.
However, when the Election Commission is part of the Prime Minister’s Department and the
final decision on constituency delimitation rests effectively with the Prime Minister,
malapportionment is systemic. For instance, in the 2013 general elections, the ruling party
won 133 parliamentary seats with only 47.38% of the popular1 vote against the opposition’s
89 seats with 50.87% of the votes. This together with the non-enforcement or selective
enforcement of electoral and other laws renders general elections ineffective in the choice of
government.

Keywords

Malaysia, malapportionment, election, laws, constitution, democracy

1. INTRODUCTION

It is natural to think that the conduct of elections would be affected mostly by electoral laws.
However, in the case of Malaysia, a discussion on this topic would be woefully inadequate if
it were not extended to other laws including some articles of the Constitution.
Ever since independence, UMNO with its coalition partners has governed Malaysia without
interruption, initially as Alliance in Malaya (now referred to as Peninsular Malaysia or West
Malaysia), and subsequently as Barisan Nasional (BN) after the inclusion of Sabah and
Sarawak to form Malaysia2. Even more important, as shown in Table 1, BN always had a
1 In this context it means the total votes cast by all voters.

2 Singapore seceded from the union within two years of the formation of Malaysia.

two-third majority in Parliament which allowed it to change the Constitution whenever it
deemed necessary. According to Shad Saleem Faruqi (Faruqi, 200, the Constitution by
2005 has been amended 42 times with around 650 individual amendments. Many of these
amendments were modifications needed by the ruling government to allow for actions that
would otherwise contravene the Constitution. In effect, the Constitution no more functions as
the set of laws that govern the government, and notes3 in the document have become a record
of how the Constitution has been repeatedly modified by the government to justify its actions.
Year



*"Government" means Alliance Party in 1964; Alliance and Sarawak United People's Party
for 1969; and Barisan Nasional since 1974.

**Sabah and Sarawak did not participate in respective election.
Source: Arah Aliran Malaysia: Penilaian Pilihan Raya (PDF)
Table 1: List of General Elections in Malaysia

2. SIGNIFICANCE OF 2008 ELECTIONS

The 2008 elections were historically important because for the first time in the history of this
country, the government lost the power to unilaterally change the Constitution and has to
abide by it, or whatever that is left of it. Nonetheless, the Constitution has already been
changed so much that it now merely provides the legal basis for the government to act in
ways that would have contravened our original constitution.

With BN’s impregnable parliamentary majority, the results of the general elections in 2008
were a complete surprise to everyone. Not only had the opposition won enough seats to deny
BN of its traditional 2/3 majority, it came at the heels of the previous general elections four
3 Notes in the Constitution record the changes that were made to the Constitution and when they were made.

years earlier, in 2004, when BN won 90% of all the seats in Parliament, a success that
surpassed even its own sterling past performance of consistently securing more than 60% of
the seats in Parliament.

The unexpected drop in BN’s parliamentary majority in 2008 led many to think, wishfully
rather than realistically, that BN could lose power in 2013. As it turned out, BN was returned
with a comfortable majority of 60% in parliament in 2013 despite losing another 8 seats and
securing only 47.38% of the popular votes against the opposition’s 50.87%.

An examination of the relevant laws would have quickly revealed that a BN defeat in any
general elections is highly unlikely no matter what its popular vote may be.
3. REMOVAL OF CONSTITUTIONAL SAFEGUARDS

To the superficial observer, Malaysia is a model parliamentary democracy in which elections
are held regularly with hardly any attendant violence that marked many countries ruled by
despotic regimes. Yet a closer scrutiny beneath the surface would reveal that the opposition
has really little if any chance of wresting power from BN through elections.

With its 2/3 majority since independence, the BN government not only had unfettered powers
to change whatever law or enact new ones required to keep itself in power, it was able to
amend the constitution for the same purpose. S. Sothi Rachagan (Rachagan, 1993) in his
highly readable and informative book Law And The Electoral Process In Malaysia had
already noted the same issue two decades earlier.

4. CARTE BLANCHE TO MALAPPORTIONMENT

One of the original functions of the EC, to delimit constituencies as provided for in Art.
113.(1), was removed in 1962, by the first parliament that was voted in before independence.
Clauses in Article 116 and 117 defining how constituencies were to be drawn up were
drastically changed to give the ruling government a free hand at malapportionment; its
strongholds were divided into smaller and therefore many more constituencies to yield more
seats in Parliament and state assemblies while areas where the opposition is strong were
grouped into bigger and therefore fewer constituencies. The following clauses in the
Constitution which stood in the way of the government were removed in 1962, within the
first term that the ruling party came into power:

Art. 116.(3) Constituencies shall be allocated to the several States in such manner that the
electoral quota of each State is as nearly equal to the electoral quota of the
Federation as it can be without causing undue disparity between the population
quota of that State and the population quota of the Federation.

Art. 116.(4) Each State shall be divided into constituencies in such manner that each
constituency contains a number of electors as nearly equal to the electoral
quota of the State as may be after making due allowance for the distribution of
the different communities and for differences in density of population and the
means of communication; but the allowance so made shall not increase or
reduce the number of electors in any constituency to a number differing from
the electoral quota by more than fifteen per cent.

Art. 116.(5) In this Article—

(a) “electoral quota” means the number obtained by dividing the number of
electors in the Federation or a State by the total number of constituencies
or, as the case may be, the number of constituencies in that State;

(b) “population quota” means the number obtained by dividing the population
of the Federation or of a State by the total number of constituencies or, as
the case may be, the number of constituencies in that State;
and for the purposes of this Article the number of electors shall be taken to be
as shown on the current electoral rolls and the population as counted at the
most recent census.

In their places, provisions relating to delimitation of Constituencies were introduced as the
Thirteenth Schedule, an appendix to Constitution. Clause 2(c) in the Schedule reads as
follows:

(c) 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.

The underlining of the text above has been introduced here to highlight the essence of the
changes that gave the ruling government carte blanche to legitimately malapportion.
The limits on variation of constituency sizes in terms of number of voters allowed per
constituency, set at 15%, were the teeth of Art. 116(4). Without them, the replacement Clause
2(c) in the Thirteenth Schedule is reduced to verbiage completely devoid of meaning. It made
malapportionment of constituencies legally accepted and violated the universal principle of
democracy, “one person, one vote”.


5. RESULTS OF MALAPPORTIONMENT

The intended effect of malapportionment in the 2008 Parliamentary Elections is clearly
shown in Fig. 1, a graph initially publicized in the Parliamentary Select Committee hearing in
Saba
h in 2011. Each column (or vertical line) in the graph represents a parliamentary
constituency. Its number of registered voters is indicated by its height. Constituencies won by
BN and the opposition are shown as blue and red columns respectively.



In the chart, the constituencies are arranged in order of size, with the smallest on the left to
the biggest on the right. Exceptions are the first eight on the left which have been won by BN
uncontested.

It is at once clear in this chart that BN constituencies are generally much smaller than those
won by the opposition, Pakatan Rakyat (PR). Since there is no valid reason why bigger
constituencies tend to back PR and smaller constituencies vote for BN, the only plausible
explanation is that BN has carved out its strongholds into small and therefore many more
constituencies while opposition strongholds are lumped together into larger and therefore

fewer constituencies. The same pattern is repeated state by state as illustrated in Fig. 2a and
2b.









In Fig. 3 the number of BN MPs as a percentage of the total is plotted against the number
votes received by BN, again as a percentage of the total votes cast, starting with the smallest
to the largest constituency. It shows how effective this form of electoral strategy is. BN could
have won 51% of the seats in Parliament in the 2008 Elections with a mere 15.4% of the
popular votes counted when the eight uncontested seats are included in the overall tally.



What it means in terms of voter’s right is that those who live in opposition strongholds had
their rights strongly diluted. This is clearly illustrated in the comparison between Putra Jaya,
a BN stronghold with only a total of 6608 registered voters, and Kapar an opposition area
with 112,224 registered voters. If Kapar had been divided into constituencies of the same size
as Putra Jaya, Kapar voters could have sent up to 17 MPs to Parliament instead of just one.
When BN strongholds are consistently subdivided into small constituencies and opposition
areas are equally consistently lumped into super-sized ones, the opposition is systematically
and effectively emasculated. The average number of voters in each BN-held constituency was
39,179 voters compared to the opposition’s average of 63,016 which is 60% higher. In such
an unequal contest, BN can never be replaced as the government through elections.

6. FIRST PAST THE POST ELECTORAL SYSTEM

Malaysia uses the first-past-the-post (FPTP) electoral system in which the candidate with
more or the most votes wins. This system tends to magnify the number of elected
representatives from the party with the most or more popular votes. It is a statistics truism
that the composition of a sample will tend to reflect the composition of the entire population
and since each constituency may be considered as a sample of the entire voter population, BN
would tend to win more seats if it had an overall majority in the entire voter population. In
fact, if voters were to be randomly distributed in all constituencies, BN with a simple
majority would have a simple majority in all constituencies and thus won in all the
constituencies. This had often been the explanation offered to explain why BN had higher
percentage of elected representatives compared to its popular vote.

This seemed plausible until the general elections of 2013 when BN with only 47.38% of the
popular votes still managed to win 133 out of the 222 or 60% of the seats in Parliament while
PR with more than 50.87% if the popular votes managed to get only 89 or 40% of the seats.
Clearly if FPTP had worked to magnify BN’s parliamentary majority in the past, it strangely
failed to work for PR in 2013. Had it worked equally well for both sides, PR would now be
the government of Malaysia.

7. TAMING THE ELECTION COMMISSION

After independence in 1957, the first general elections were held in 1959. Constituencies
were delimited based on population statistics obtained in 1952. In the seven years since, these
figures were no more valid because of forced migration of people into new villages in
response to the communist insurgency and by natural rural-to-urban migration which had
become more significant after World War II.

In recognition of this difficulty, provisions in the form of Art.46 had been built into the
Constitution for the number of members of parliament to be adjusted after these first general
elections in 1959. They read as follows:

Art. 46.(1) The House of Representatives shall consist of one hundred elected members
except that the first House of Representatives shall consist of one hundred and
four.

Art. 46.(2) After completion of the first census to be taken after Merdeka4 Day Parliament
may by law alter the number of members of the House of Representatives.

In 1960 the EC in compliance with these constitutional provisions presented its report on
constituency delimitation that would reduce the number of seats in the House of
Representatives from 104 to 100. UMNO could not accept this because the reduction would
come at the expense of their constituencies which turned out to have generally less voters
than assumed.

When Haji Mustapha Albakri, the first Chairman of the Election Commission (EC), refused
to change the report, UMNO made repeated attempts to have him removed. According to
Rachagan (1993), Haji Mustapha Albakri had served as Chief Minister of Perak, Keeper of
the Rulers Seal, Secretary of the Conference of Rulers and as a member of the
pre-Independence cabinet. When UMNO refused to open its membership to all Malaysians,
he left and subsequently joined Party Negara, only to resign again because of its increasingly

[4 Independence]

non-Malay stand. Therefore, he was not only a prominent and much respected citizen, he had
a reputation for fair and firm conduct.

The instrument used in the first attempt to remove him was Art. 114(4) which originally read
as follows:

A person is disqualified for appointment as a member of the Election Commission if
he holds any other office of profit or is a member of either House of Parliament or of
the Legislative Assembly of any state.

This was amended to read:

Notwithstanding anything in Clause (3), the Yang di-Pertuan Agong may by order
remove from office any member of the Election Commission if such member –

(a) is an undischarged bankrupt; or
(b) engages in any paid office or employment outside the duties of his office; or
(c) is a member of either House of Parliament or of the Legislative Assembly of a
State.

This attempt made use of the fact that Mustapha Albakri was receiving money from his
business interests even though he was not holding any office of profit. He warded off this
attempt with Article 114(6) which provided that “the remuneration and other terms of a
member of the Election Commission shall not be altered to his disadvantage after his
appointment”. In other words, any monetary rewards and benefits he had been receiving
before his appointment to the Election Commission shall not be changed after his
appointment.

The Government continued with another attempt in 1962 by making the 1960 amendments
retrospective to 31st August, 1957, and, to provide that they would have effect despite
anything in Article 114(6). In other words, amendments in 1962 nullified Article 114(6)
which had saved Albakri his tenure in the EC in 1960. Fortunately for Albakri, he pre-empted
that by divesting of his interests by the time the amendments were passed. He continued to
serve as Chairman until he retired in 1967 at the age of sixty-five.

The case of Albakri clearly demonstrates the intention and habit of UMNO rewriting the
constitution to its advantage. The same applies to other laws they have drawn up.

8. PRIME MINISTER, THE DE FACTO ELECTION COMMISSION CHAIRMAN
The original Constitution clearly intended the EC to be completely independent so that it can
carry out its duties fairly and without bias. This was clearly spelt out in Art. 114(3) which
stated that:

A member of the Election Commission … shall not be removed from office except on
the like grounds and the like manner as a judge of the Federal Court.

However, in stark contrast, the Election Commission is now a part of the Prime Minister’s
Office. Far from being a mere rearrangement for administrative convenience, this change is
accompanied by amendments to the Constitution which handed the task and final authority of
constituency delimitation and other major decisions of the EC to the Prime Minister
How this works is spelt out in the form of the Thirteenth Schedule added in 1962 as part of
the assault on the independence of the Election Commission. The Schedule consists of a raft
of clauses, referred to as “sections”, which spell out in detail the procedure for delimitation of
constituencies. The essential steps, from Sections 8 to 12 of the Schedule, may be
summarized as follows:

The Election Commission shall submit its report on constituencies to the Prime
Minister who shall then table the draft Order in Parliament, with or without
modifications, and with or without consultation with the Election Commission, to be
passed by simple majority like any other bill.

The complete wording of these Sections reads as follows:

8. The Election Commission shall, having completed the procedure prescribed by
this Part, submit to the Prime Minister a report on constituencies showing—

(a) the constituencies into which they recommend that each unit of review5
should be divided in order to give effect to the principles set out in section
2; and

(b) the names by which they recommend that those constituencies shall be
known,

or stating that in their opinion no alteration is required to be made in order to
give effect to the said principles.

9. 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.

10. If any draft Order referred to in section 9 is approved by the House of
Representatives by resolution supported by the votes of not less than one-half of
the total number of members of that House, the Prime Minister shall submit the
draft Order to the Yang di-Pertuan Agong6.
11. If a motion for the approval of any draft Order referred to in section 9 is rejected
by the House of Representatives, or is withdrawn by leave of the House, or is not

[5 There are three units of review. All the states of West Malaysia form one with Sabah and Sarawak as the
remaining two.
6 The king]

supported by the votes of not less than one-half of the total number of members of
the House, the Prime Minister may, after such consultation with the Election
Commission as he may consider necessary, amend the draft and lay the amended
draft before the House of Representatives; and if the draft as so amended is
approved by the House by a resolution supported by the votes of not less than onehalf
of the total number of members of the House, the Prime Minister shall submit
the amended draft to the Yang di-Pertuan Agong.
12. Where the draft of an Order is submitted to the Yang di-Pertuan Agong under this
Part, the Yang di-Pertuan Agong shall make an Order in the terms of the draft
submitted to him, and the Order shall come into force on such date as may be
specified therein:

Provided that the coming into force of any such Order shall not affect any election
to the House of Representatives or a Legislative Assembly until the next
dissolution of Parliament or the Assembly, as the case may be, occurring on or
after that date.

With the Prime Minister having the final say in how constituencies are to be drawn, without
having to comply with any Act in the Constitution, and with just a simple majority in
Parliament, the ruling party is now completely free to redraw constituencies in whatever
manner it chooses. It would be extremely naïve to expect the ruling party after having crafted
this situation not to use it to its own advantage especially when it has already been using it in
the past.

9. ELECTION LAWS

Without an understanding of how we arrived at where we are today, any fair description and
assessment of the present legal environment would inevitably appear as incredibly biased
against the government. However, if we understand how we got here, the need to extend this
discussion to include laws other than electoral laws becomes self-evident. The single
objective of many of these laws is to keep the ruling party in power.

The laws which are directly related to the conduct of elections include the following:

a. Act 5: Election Offences Act 1954
b. Act 31: Election Commission Act 1957
c. Act 19: Elections (Conduct of Elections) Regulations 1981
Elections (Registration of Electors) Regulations 2002
Elections (Postal Voting) Regulations 2003
d. Guide books for: Polling Centre Agent, Polling Agent, Counting Agent
e. Guide book on use of indelible ink
f. Election code of ethics


Most of them are no doubt useful in standardizing election procedures making the whole
process efficient. However, without enforcement, their regulatory functions to keep elections
clean and fair are rendered null and void. When they are exercised selectively favoring only
one side or breached by the authorities without fear of punishment they are transformed into
weapons directed at the opposition. For instance the recording of ballot paper numbers
against the names of voters they are issued to violates Art. 5(2) and 5(3) of the Election
Offences Act. Despite this rampant and open practice by polling clerks and polling agents in
past elections but no one has ever been charged for these offences. It does lend credence to
the common belief that the government can trace how each voter has voted which in turn has
compelled many government servants to vote for government candidates even though their
political sympathies may lie elsewhere.

Since the laws are enforced selectively or not at all, the examination of individual laws is
rather pointless. Instead the incidents in two elections in 2013 will be used to illustrate the
ways the laws are enforced or not enforced and how they affect elections.

Case 1: Contest for Tapah Parliamentary Seat

The contest between Vasantha Kumar (PKR) and M Saravanan (BN), now the Deputy
Minister of Federal Territories and Urban Well-being, was obviously important not only
because a deputy minister designate was BN’s candidate but because it was one of the dirtiest
and most violent in the entire 2013 general elections. Apart from the murder of one of the
PKR aides, the contest was also marred by numerous breaches of electoral laws including the
following:

• Orang asli (indigenous people) in a village were prevented by RELA (a government
paramilitary civil volunteer corps) from leaving their village to vote. [Violation of Art.
3(1)(n) and 9(1)]
• EC officials and local council employees removed boxes of early votes from the “safe
custody” of police lockup to an undisclosed destination for an undisclosed purpose
three days before polling day when they would be counted.
• Voters were bribed with bags of food supplies in plastic bags printed with the BN
candidate’s photograph, BN’s logo and an appeal to vote for BN. [Violation of Art. 8]
• The opposition candidate and his agent were kept away by police from witnessing the
vote count.

According to Free Malaysia Today7, K. Hariharan as Vasantha Kumar’s counsel filed an
election petition citing these and other violations. A co-counsel, Siravasa, was added later.
The judge dismissed both lawyers; Hariharan, on the grounds that he was initially described
as peguambela (advocate) instead of peguam (lawyer) and Siravasa on the grounds that he

[7 http://www.freemalaysiatoday.com/cat...etitionabsurd/]

was not included in the original petition. Finally the judge dismissed the case altogether on
grounds that Vasantha Kumar, as the petitioner, could not represent himself as he had initially
opted to appoint lawyers. To add insult to injury, the petitioner was ordered to pay cost of
RM190,000.

When the EC which is the referee of elections and the Judiciary are all outrageously biased it
will be meaningless to discuss how electoral laws affect elections. As an aside, altogether
there were more than 30 election petitions filed. Up till now, none have gone further than
hearing in court.

Case 2: Contest for Lembah Pantai Parliamentary Seat

The second case was the contest between two high profile candidates. One was Nurul Izzah,
daughter of opposition leader Anwar Ibrahim. She became the incumbent in 2008 after
beating Shahrizat Abdul Jalil (BN) who was then the Minister of Women, Family and
Community Development. The BN candidate in 2013 was Raja Nong Chik, Minister of
Federal Territories who had control over Kuala Lumpur covering 11 parliamentary
constituencies.

Since 2008 the electoral roll for the constituency had increased by more than 24% from
58000 to 72000. Advance voters increased from 187 to 2000 including police personnel
stationed elsewhere being transferred into the constituency. Many voters were registered with
incomplete addresses including for example more than 4000 in one Kampung Pasir Kiri.

However, after the Likas8 by-election in 2003 where 4000 phantom voters were unearthed, an
amendment was introduced as Sec. 9A which made it impossible for the electoral roll to be
challenged once it has been gazetted.

Advance voting has always been viewed by the opposition as being used by the ruling party
to grant itself “bonus” votes because almost always more than 90% of the advance votes go
to the government candidates. Furthermore, the entire process cannot be monitored by the
opposition or anyone else. The mysterious movement of the advance votes by EC officers
cited in Case 1 above could only lend weight to the suspicion that the process is being used
by the EC as the equivalent to legalized stuffing of ballot boxes.

Other electoral offences were numerous in this contest but like elsewhere, no action was
taken. The following are some examples to illustrate the nature of the offences:

• Party supporters were threatened, and even attacked. At least seven reports were made
by the victims, some even backed up by video records.
• An UMNO member was even appointed by the EC to be the election officer of a
polling district.
8 A state constituency in Sabah
15
• At a rally by Anwar Ibrahim, UMNO members hurled rocks and eggs at him and the wire to
the PA system was cut.
• Opposition’s election paraphernalia like posters, banners and flags were damaged.
• UMNO called on single women supporters of the opposition informing them that they
were deserving of government aid but their names would be struck off if they voted
against BN.

10. OTHER LAWS

Laws controlling the free flow of information are not electoral laws and therefore, in the strict
sense of the title of this paper, they fall outside the scope of this discussion. However, since
the press is essential in disseminating information and shaping public opinion and therefore
in determining how voters choose, at least a brief disclosure of the tight control of the press is
necessary for a more complete understanding of the underlying issue.

In Malaysia the mass media in the form of TV, radio, newspapers, magazines, books, etc. is
so tightly controlled by various laws that the local press is effectively one gigantic
government propaganda machine that almost rivals those of countries which most western
countries recognise as under totalitarian rule. Foreign news services that seemingly broadcast
freely via private TV networks are routinely delayed by a couple of minutes to enable censors
to delete contents unfavourable to the ruling party. Foreign publications are also similarly
routinely delayed for censorship, and specific issues containing articles that are unfavourable
to the government are quietly banned. Thus, the claim by Abdul Rashid (Abdul Rashid, 2013),
former chairman of the EC, that “the absence of loud voices of dissent regarding the electoral
system indicated that the people themselves did not want changes” is patently false.

The government has been slow in realising the effectiveness of the internet as an alternative
source of news until the two most recent general elections. When urban voters were found to
have shifted their support to the opposition because of access to the internet as alternative to
news and views, steps are now afoot to rein in the internet as well.

11. CONCLUSIONS

Based on the facts presented above, the inevitable conclusion is that Malaysia has a very
entrenched government as a result of its laws, including the Constitution, which have evolved
over the years. Regardless of what the popular vote may be, the BN will continue to form the
government as suggested by the results of the general elections in 2013 in which BN with less
than 48% of the popular vote can still have 60% of the seats in Parliament. The upcoming
delimitation exercise will enable the Election Commission with the Prime Minister as its de
facto head and backed by a simple majority in Parliament to readjust constituency boundaries
so that the loss of seats by BN in the last two elections can be corrected. From it, the BN
government can be expected to emerge stronger than ever. History has shown that the BN
backed by the judiciary and acting within its own laws has the will to do whatever it takes to
ensure that it continues to form the government.

Bibliography

Faruqi, S. S. (200. The Constitution of the Federation of Malaysia. Shah Alam: Star Publications.
Rachagan, S. S. (1993). Law and the electoral process in Malaysia. Kuala Lumpur : University of
Malaya Press.

Rahman, A. R. (2013). Electoral Reforms - Facts and Fallacies. Petaling Jaya: MPH Group
Publishing Sdn Bhd.