Delimitation Forum Day 1

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Speech by Christopher Leong, President, Malaysian Bar at the Public Forum on Electoral System (MBPJ Civic Centre, Petaling Jaya, 15 Feb 2014)

http://www.malaysianbar.org.my

Saturday, 15 February 2014 09:19PM

Honoured guests, ladies and gentlemen,Good morning and thank you for taking time off from your weekend and family commitments to be a part of this Forum.As you may be aware, Bar Council Malaysia has been in the forefront of public interest issues in Malaysia from our inception. We are an independent and politically neutral Bar whose aim is to uphold the rule of law and the cause of justice, and protect the interest of the legal profession as well as that of the public.It is therefore on this occasion that the Bar Council Malaysia is working with selected organisations to create a platform to educate Malaysian voters about the importance of their vote, as well as the processes involved in constituency delineation or delimitation.This is done in recognition of the fact that currently, there appears to be several key flaws in the system, and we believe that it is incumbent upon the Election Commission to make far-reaching and fundamental changes by the process of delineation which we hope will happen soon.The imperative must be to establish a platform for fair and free elections in line with democratic principles and international best practices. This will ensure the achievement of one person, one vote, one value for every validly registered voter in Malaysia.

This forum will give you the opportunity to evaluate and understand the implications of the current apportionment of seats at the different constituencies, and I think you will, like the rest of us, realise that there are several glaring points of contention. I would like to emphasise that the issue of mal-apportionment and gerrymandering is not something new. It is not something that has come about in recent times. It is critical that you, as voters and concerned citizens appreciate that Malaysia’s history is scattered with election delineation discrepancies even from independence. In some instances it has been justified on the grounds of the unique cultural demographics of our nation, and the fundamental urban and rural divide that continues to exist even after 57 years of independence. It is in taking cognisance of this, and the need to move in the right direction, that we have organised this public forum.

The focus of this forum is to inform the Malaysian voter that their right to be heard is not only manifest when there is a general election or a by-election, but rather, that they are able to continue to contribute to the growth of a democratic electoral system in Malaysia, at critical times in Malaysia’s history. One such time is when the Election Commission, which is statutorily empowered to review constituency boundaries at least once every eight years, may be on the verge of
doing so.As I understand it, constituency delineation has two aspects that can affect electoral outcomes:

- the distribution of the total electorate among constituencies (apportionment); and
- the determination of constituency boundaries (districting).

According to Dr Lim Hong Hai, retired professor from Universiti Sains Malaysia, who will be speaking at this event:

- Where delineating constituencies results in unequal electorates, this amounts to mal-apportionment, and may manifest as favouring parties with more supporters in the smaller constituencies; and

- Where constituency boundaries are drawn to the advantage of a political party (usually the ruling party for the time being), the practice is called gerrymandering.While I am happy to leave the details of constituency delimitation in the hands of the experts, there are some key points from our history with regard to constituency delineation in Malaysia I would like to raise.1. There have been several delineation exercises conducted over the years in order to update the voter rolls.While the general proposition is that the lines should be drawn to reflect the internationally accepted best practice of one person, one vote, one value, this has not been achieved in Malaysia.

2. In 1954, the Federal Legislative Council’s Committee recommended that:
“the numbers of inhabitants within each constituency should be approximately equal except that, having regard to the greater difficulty of contacting voters in the country districts and the other disadvantages facing rural constituencies, a measure of “weightage” for area should be given to the rural constituencies”. The Report states that ‘the Committee would
not regard such weightage as unreasonable if in some instances a rural constituency should contain as little as one-half of the constituents in the more populous areas’. Basically the effect of this was the value of a rural vote could be double that of an urban vote. This was justified on grounds of the rural/urban divide.3. Changes were made to this in 1957 taking into account the Reid Commission recommendation that there should be a 15% limit on deviations from the average constituency electorate. This was adopted into Article 116(3) and (4) of the Federal Constitution.

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4. According to Dr Lim’s writings, the Constitution (Amendment) Act of 1962 was enacted as the ruling Alliance’s response to the poor showing in their favour in the 1959 general elections, and at the subsequent local elections in 1961.Section 2(c) of the Thirteenth Schedule of the Federal Constitution provided new rules for delineating constituencies in future reviews, resulting in the restoration of the pre-independence 2 to 1 rural weightage thereby backtracking on the Reid Commission’s recommendations.The Constitution (Amendment) Act of 1962 also increased the government’s powers of control over the Election Commission by empowering Parliament to determine the terms of office of members of the Election Commission other than their remuneration. 5. In 1963, the Malaysia Act made extensive amendments to the Federal Constitution to take into account the addition of Singapore, Sabah and Sarawak although it did not touch on the weightage issue, but was more focused on the distribution of seats amongst the different stakeholders.6. The next major change was in 1973 after the 1969 elections. It must be highlighted that this was arguably in response to the poor showing in favour of the ruling party. As a consequence, according to Dr Lim, the provisions of section 2(c) of the Thirteenth Schedule (introduced in 1962) that limited constituencies to a 2 to 1 rural weightage, was replaced with a new section 2(c) which 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”. This is intentionally vague and does not specify a number or percentage of weightage. It is critical to understand that the implication of this provision is that it completely removed the specific constitutional limits to rural weightage.

It may be useful to highlight at this point, that this is the current provision in our laws and in our Federal Constitution.This is very fundamental, in real terms, because it means that at its extreme, it would be impossible to attain any version of the notion of one person, one vote, one value. It would therefore be possible to have instances where for example, one vote in constituency A, would be worth 9 votes or even more, in constituency B.7. In 1984 the reform to the law on delineation was also fundamental. Amongst the changes was the removal of the upper limit of ten years for constituency review. This was replaced with ‘an interval of not less than eight years between the completion of one review and the date of commencement of the next review’ - Article 113(2)(ii) of the Federal Constitution. This meant that the Election Commission had the absolute discretion to determine when constituencies needed to be reviewed and there would be no ceiling on when they could be compelled to do so. 8. Ten years later, the 1994 amendments resulted in one key change with the introduction of electoral ranges for both federal and state constituencies within five distinct categories:The categories are rural; semi rural; semi urban; town or urban; and city. The Election Commission attempted to define the minimum and maximum number of voters in each of these categories at parliamentary and state levels.A review of the recommendations for distribution of voters by the Election Commission suggests that, in its simplest form, the value of the city vote for parliamentary constituencies could be 3.5 times less in value than the rural vote; and the value of the city vote for state constituencies could be 5 times less in value than the rural vote.9. As a result of the 2003 and 2005 delineation exercises, the number of parliamentary seats was increased by a total of 20 for Peninsular Malaysia, Labuan and Sabah in the former exercise, and by 3 seats for Sarawak in the latter exercise, resulting in the 222 seats we have today.Having said all that, I think it is useful to know, that these existing rules, while perceived to be contrary to good governance and certainly divergent from the international best electoral delineation practices, can also be used to the advantage of making a positive change.This is where I believe, your role, as concerned and proactive citizens and stakeholders will come in. I hope that the two days of this forum will instill in you, a sense that there is something positive that you can do; and more importantly, show you the steps that you will need to take to do it.The primary reason for this forum is to educate Malaysians that, even though the general elections are over, the opportunities to make a difference are not.I would like to appeal to the Election Commission to take the next steps to correct the existing flaws in the system, and aim to achieve one person, one vote, one value, taking into account the variances that are unique to the Malaysian electoral demographics. We hope that this forum will demonstrate to the Election Commission that we want to be engaged and to contribute to this process, and we ask that the role that civil society can play in making a difference be recognised. This will be a true exercise in democracy for a nation very much in need of such a commitment, and a reflection that the current government is cognisant of the needs of its people in the growth of our young nation.The fact is, the current government is plagued by a perspective that they hold their political position due to the outcome of how
constituency boundaries have been drawn which are not equitable, and which ignores some fundamental truths expected of a democratic nation. As we saw from the results of the recent 13th General Election:

- while Barisan National had 47.38% of the vote, this resulted in them obtaining 59.91% of the seats;
- while Parti Keadilan Rakyat had 20.39% of the vote, this resulted in them obtaining 13.15% of the seats
- while DAP had 15.71% of the vote, this resulted in them obtaining 17.12% of the seats
- while PAS had 14.77% of the vote, this resulted in them obtaining 9.46% of the seats

A government cannot be called democratic simply because its electorate can participate in general elections. The true test of a democracy is in looking at the structure and mechanics that are put in place in the implementation of the electoral system, the election campaign and the election itself, and in not finding that system wanting.We are thus very privileged to be working with Tindak Malaysia as well as organisations such as Bersih, ENGAGE, Projek Beres, and stalwarts on the development of constitutional and electoral law and human rights in Malaysia such as:

- Tan Sri Hasmy Agam, SUHAKAM

- Dr Bridget Welsh, Singapore Management University

- Dr Wong Chin Huat of the Penang Institute

- Professor James Chin, Monash University Malaysia

- Dr Lim Hong Hai, formerly from Universiti Sains Malaysia

- Dr Shaharuddin Baharudin from Akademi Pendidikan Demokrasi dan Kewarganegaraan
- Ibrahim Suffian, Merdeka Centre

- Syed Ibrahim Syed Noh, MAFREL

and all the distinguished speakers for the forum. I would like to make particular mention of Dr Lisa Handley who has taken time to come from the United States to be with us and to share her knowledge with regards to delimitation and best practices. With that I would like to thank all of you for being here this morning and hope that you would take away valuable information and knowledge from these two days of the forum.

Thank you.
15 February 2014

Christopher Leong
President
Malaysian Bar

https://docs.google.com/a/tindakmala...F1NGEyQTQ/edit

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Why it’s in Umno’s best interest to give everyone an equal voice



BY SHERIDAN MAHAVERA, TheMalaysianInsider
FEBRUARY 16, 2014

To maintain power in Parliament, Umno has to be inclusive and serve diverse communities and not depend on the carving out of more Malay-majority seats from the redrawing of electoral boundaries. – The Malaysian Insider pic, February 16, 2014.Contrary to the prevalent theory in Umno, the party's continued survival hinges on its ability to broadly appeal to all sections of Malaysian society – including urbanites and non-Muslims who ditched it in the last general election.


Analysts told The Malaysian Insider that it would be a mistake to think the Malay nationalist party can maintain power in Parliament by carving out more Malay-majority seats from the redrawing of electoral boundaries.


Neither would it be viable for Umno to constantly play up racial and religious sentiments to draw in more Malay-Muslim support to win in those seats, they said.


Instead, the analysts who spoke at a forum on electoral reforms, showed changes in Malaysian demographics and voting patterns were going to force Umno, or any political party, to be inclusive and serve diverse communities.


The increasing diversity of Malaysian society can be seen in how 70% of the voters now live in urban centres mostly along the west coast of the peninsula, said independent pollster Merdeka Center.


In fact, one-third of Malaysia’s population now live in the Klang valley, said its director Ibrahim Suffian.


Yet the number of constituencies, represented in seats in Parliament, does not reflect this fact.


There are more sparsely populated rural seats in the peninsula's east coast and Sarawak and Sabah which give rural voters more say who gets to form the federal government.


The pundits also argued this is where Umno and the Barisan Nasional (BN) East Malaysian parties draw their strength.


This was why Umno and the BN only won 47.38% of all votes cast, while Pakatan Rakyat (PR) won 50.87%, yet the BN gets to rule the country, they added.


By their logic, the next electoral delineation exercise in March this year, where constituency boundaries are drawn, is expected to create more such seats.


That way Umno will get more so-called safe seats.


But the problem with being a voter in a safe seat, said political scientist Dr Wong Chin Huat, is that the political party often takes constituents for granted.


“There is less incentive for the representative to really take care of your needs. On the other hand, the opposing party writes you off because they think they can’t win you over any way,” said Wong, of the Penang Institute.


Wong used the example of the controversial Lynas rare earth refinery in Gebeng, Pahang.


“At first it was supposed to be built in Kemaman (Terengganu),” claimed Wong.


But because Umno thought Pahang was a safer state politically, the plant was built in Pahang as opposed to Terengganu, whose voters once bumped BN out of the state government.


Voters, however, were not totally pliable and easily bought off with handouts or scared by racial incitement. Neither can a gamed electoral re-delineation formula served Umno.


This can be seen in the re-delineation exercise in 2003, where the BN created more mixed seats, said Singapore Management University associate professor Dr Bridget Welsh.


The assumption then was that non-Malays were behind the BN and it was the Malays who were voting for the opposition. The 2008 election results trashed that safe-seat formula.


“Malaysian society is dynamic. It is changing and people are able to adjust to the restrictions placed on them. You cannot guarantee what you do now would work in the future,” said the political scientist.


As Welsh and Ibrahim have argued in the past, local politics and state administration, such as whether a representative actually takes care of their constituents and takes them for granted, matter to voters.


These matter regardless of whether they are urban or rural voters, as seen in how PR lost control of the Kedah government in 2013, and BN lost Terengganu in 1999, due to inept management.


So, in a reality where there are few safe seats, Umno will have no choice but to return once again to a multi-ethnic approach. But this time, argued Welsh, they have to mean it.


By thinking it has to only pander to rural Malays, Umno loses its ties to Malay urbanites and non-Malays.


“The Prime Minister relies on economic growth. For this, he has to reach out across ethnic boundaries.”


So instead of an unequal re-delineation exercise, the BN would instead be forced to listen to urban voters and give them a fairer amount of say in Parliament.


“If they want long-term stability for the country, this is the way to go,” she said. – February 16, 2014.

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12:45PM Feb 16, 2014
NGO puts out alternative delineation maps

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In anticipation of further gerrymandering and malapportionment in the Election Commission’s (EC) upcoming redelineation exercise, an NGO has drawn up its own constituency maps and hopes that it will gain traction amongst voters.

Tindak Malaysia delimitation analyst Ng Chak Ngoon (left) said this is because when opposition parties objected to past redelineation exercises, the EC would demand an alternative and the political parties could not respond to it.

“So now as a first stop, we came up with all these maps of every state. If the EC were to hold a hearing tomorrow, we (would) have all these maps to say, ‘Look, we would like to object.’

“What we don’t have, is 100 volunteers from each constituency. This is the next effort that Tindak Malaysia wants to undertake together with Bersih,” he said during a seminar on redelineation yesterday.

Ng refers to provisions under the federal constitution, where groups of at least 100 voters may raise objections to a redelineation exercise if their constituency’s borders are being shifted. This needs to be done within 30 days after the EC gives notice of its proposed changes.

Another Tindak Malaysia analyst, Wong Kouk Yong, argued that if voters from multiple neighbouring constituencies object to a redelineation exercise and propose new borders based on the same map, it would give the EC little room to manoeuvre except to concede.

“It may not work if you propose only for your own constituency, because it affects your neighbours. Your neighbours may object to your own proposal.

“This is what we think, so we would have to coordinate at least state-wide. When we go on (to submit the proposal to the EC), there is not much room for the EC to turn us down.

“This is why Tindak Malaysia tries to come up with all the maps, so that it will be our reference and our base to work on,” Wong (left) told the audience of about 150 activists.

He explained that the maps were drawn by reallocating existing polling districts between parliamentary constituencies, such that the discrepancies in the size of each constituency within a state is minimised.

Unlikely two-thirds majority

The number of constituencies in each state is maintained because for the EC to create new seats, it will require a two-thirds majority in Parliament, which is unlikely, given that no coalition can command the required votes.

This is to address the issue of malapportionment, which is seen as a hindrance in ensuring that every vote has equal value in putting election candidates in power.

Attempts were also given to try to conform to administrative boundaries as much as possible, and to give consideration for issues such as geographical barriers, accessibility, and lines of communication.

As a result, the discrepancies between constituencies were reduced to within 10 percent of the average of the state it resides in for the peninsula, and 15 percent for Sabah and Sarawak due to its vast area.

In contrast, the largest intra-state discrepancy is between Kapar and Sabak Bernam in Selangor, where the average constituency should have 93,129 voters. Under existing electoral boundaries, Sabak Bernam has 37,318 voters (40.07 percent of average) whereas Kapar has 144,159 voters (154.79 percent of average).

If the 13th general election had been run based on Tindak Malaysia’s proposed borders, Ng said Pakatan Rakyat would have won 117 out of 222 parliamentary seats (53 percent), as compared to the actual 89 seats (40 percent).

This more closely reflects the proportion of popular votes garnered by each coalition in the election, which is 50.87 percent for Pakatan and 47.38 percent for BN.

However, Wong said the maps are only a first draft, and there is still work to be done to minimise discrepancies across state boundaries, to draw up borders for state constituencies, and to get feedback from local constituents.

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4:19PM Feb 15, 2014
'Over-representation no help to Sabah, Sarawak'

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Sabah and Sarawak’s over-representation in the Dewan Rakyat has been of no benefit to the two states and should be abolished in the long-run, argued political scientist Wong Chin Huat.

He said such a situation only creates 'safe deposits' for the BN, making regime change unlikely.

Contrariwise, he said, East Malaysia would benefit from a Parliament where Malaysians are equally represented, as it would lead to greater competition for Putrajaya.

And all political parties would be forced to strike better deals for the electorate.

“What we really need in Sabah and Sarawak is decentralisation, not an increase in seats.

"Seat increase is the wrong prescription and a bad substitute for decentralisation,” Wong told a seminar in Petaling Jaya today.

He added that decentralisation should also include substantial power and fiscal autonomy for the states, elected municipal governments, and an “elected and empowered” Senate, where one-third of seats are set aside for Sabah and Sarawak with some seats reserved for the Orang Asli.

Sarawak CM deposed

To illustrate Sabah and Sarawak’s impotence in federal politics, Wong said the federal government had declared an emergency in Sarawak in 1966 and deposed then chief minister Stephen Kalong Ningkan via the Parliament.

This circumvented putting a motion of no confidence through the state legislative assembly, and was passed despite the undermining the state’s autonomy.

He also highlighted the East Malaysia’s lack of development, despite being resource-rich.

Pre-empting arguments to stick to the Malaysia Agreement and let the two states be over-represented, he said, “Why should we stick the Malaysia Agreement, if there can be a better deal?”

There are currently 55 parliamentary seats representing East Malaysia, including the federal territory of Labuan, out of a total of 222 seat nationwide.

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2:20PM Feb 15, 2014
Unfair redelineation may backfire, says don

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The manner that Malaysia’s electoral boundaries are drawn is discriminatory and divisive, and could ultimately undermine the government’s legitimacy if continued, warned academician Bridget Welsh.

“If the lesson that the government takes from the 13th general election is that we have to use the redelineation exercise to strengthen our political power in a polarised fashion, it will ultimately weaken itself…

“If you continue of follow a pattern that is divisive, that is exclusive, that is diminishing rights; these things - I fundamentally believe - will backfire,” she said during a seminar in Petaling Jaya today.

This is because being under-represented - whether by race, age or socio-economic background - create ‘bad feelings’ and anxiety, hence further polarising Malaysian society.

She was speaking on past redelineation exercises in Malaysia and comparing it to international best practices, which are based on principles of impartiality, equality, transparency, representativeness and non-discrimination.

Welsh said there is "no question" that redelineation exercise is being used to strengthen BN’s grip on power, and the Election Commission’s (EC) rationale underlying each redelineation exercise has not been consistent.

For example, the 1974 redelineation exercise emphasised on rural constituencies, while the 1983 exercise created mixed constituencies, and the 2003 exercise emphasised the creation of ‘safe’ seats.

‘Unintended consequences’

However, Welsh added that it should not be assumed that redelineation can be continuingly used to adapt to a changing political landscape, because political players will adapt to it as well.

For example, she said the 2008 political tsunami was an "unintended consequence" from the creation of mixed-race seats.

Asked to elaborate, she said the creation of mixed-race seats began with the 1983 redelineation exercise, partly to reduce competition from PAS, and partly to capitalise on then Prime Minister Dr Mahathir Mohamad’s greater outreach to ethnic minorities at the time.

However, these mixed-race seats became a weak point for BN in 2008, where the opposition won many of such seats.

“This is not only in Malaysia, it happens in a lot of places. When you have set in place a set of rules and procedures, the implications are that people will learn to adapt to them and respond to them.

“You cannot guarantee that what is in place in this particular time will still be relevant 10 years down the line,” she said.

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pdated: Sunday February 16, 2014 MYT 7:53:02 AM



Analysts: Ethnicity to influence boundaries

BY LOH FOON FONG, RASHVINJEET S. BEDI, AND TASHNY SUKUMARAN


PETALING JAYA: Ethnic-based voting patterns are likely to influence how electoral boundaries will be redrawn, say political analysts.


Merdeka Centre co-founder Ibrahim Suffian said such a principle was likely to be adopted as it was the simplest and clearest way to redraw boundaries.


“The reality on the ground is that people live in rather ethnically homogenous neighbourhoods,” he said at a forum titled Towards a Fairer Electoral Systemorganised by the Bar Council and Tindak Malaysia here yesterday.

Ibrahim added that this was also due to the prevalence of race-based political parties as well as an increased racialisation of politics.


Within this context, he said there were 80 marginal seats that would be interesting to observe.


The areas include southern Kedah, central Perak, northern Selangor, southern Johor and the Kadazan heartland in Sabah.


Ibrahim said in the long run, delineation based on ethnic distribution would not be a positive move because people want to have a sense of fairness in the system, and currently, urban voters felt that their votes counted far less than those in rural areas.


“It should be based on population size because it relates to services provided by the representatives,” he said, adding that the capping of the difference in the number of voters up to 30% between seats would be a good start, with gradual reductions over time.


In GE13, Barisan Nasional won 60% of the seats with 47% of the overall vote, while Pakatan Rakyat won 40% of the seats although they obtained 51% of the vote.


Frontier International Electoral Consulting president Dr Lisa Handley said the tolerance limit varies dramatically around the world.


“For example, Canada has a 25% tolerance limit, and they can go beyond that under extraordinary circumstances,” she said, adding that the most common tolerance limit was 10%.


Bar Council chairman Christopher Leong remarked that the difference was too vast – for instance, the Kapar parliamentary constituency had 144,159 voters while Sabak Bernam had 37,318, a difference of nearly four times.


Singapore Management Univer­sity’s political science associate professor, Dr Bridget Welsh, said ethnicity is a big factor in drawing electoral boundaries.


“However, history has shown that what works in one election will not necessarily work two elections down the road. In some cases, it (the earlier ethnic formulae thought to beneficial) can backfire,” she said.


The last redelineation exercise by the Election Commission was in March 2003.


In a statement, Tindak Malaysia said it would propose an electoral map that would help ease the pressure on the EC.


It said its effort would not only help ease EC’s workload, but also help deflect some of the unfair accusations and demands heaped upon the commission.