M’sia’s electoral system: Govt of the people? (2)

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.

Tey Tsun Hang, CPI

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