By Aliran, on 24 August 2011
Francis Loh reminds us of the unlevel electoral playing field and the Election Commission’s loss of autonomy.
Malaysians are well aware of the unlevel playing field that characterises our electoral process. As elections approach, Malaysians see clearly the Barisan Nasional (BN)’s monopoly and manipulation of the media, its access and abuse of government facilities and funds, and its possession of huge electoral war chests, which allow the BN parties to outspend its challengers.
In between elections, the BN’s elected representatives have access to so-called “constituency development funds” to finance minor capital works projects and/or to sponsor programmes of particular schools, associations, religious organisations, residential communities, etc, favoured by them, whereas the same is denied to the elected opposition representatives. This is a blatant disregard of the required equal treatment of all elected representatives as enshrined in any notion of parliamentary democracy.
Yet most Malaysians still consider the elections and the electoral process as important features of our constitutional system of government; not least because it is the one remaining democratic institution that is still beyond the grip of the Executive. Here, the unpredictable can still occur, at least at the constituency level, if not at the state level.
Five different election laws and regulations are currently in place in the country. These are the:
- Election Act 1958;
- Election Offences Act 1954;
- Election Commission Act 1957;
- Elections (Conduct of Elections) Regulations 1981; and
- Elections (Registration of Electors) Regulations 1974.
The Acts are statutory or primary laws which require parliament’s assent while the Regulations are secondary laws which do not necessarily require parliamentary assent. Apart from these, various parts of the Federal Constitution are also concerned with electoral matters. Articles 48-54 discuss the workings of Parliament and the Members of Parliament; articles 113-120 discuss the specificities of Malaysia’s first-past-the-post or simple majority electoral system including the role of the Elections Commission (SPR); while the 13th Schedule (added to the Constitution in 1962) contains principles for the de-lineation of constituencies including the controversial concept of “rural weightage”.
There also used to be laws for conducting local authority elections which used to be a feature of Malaysia’s democracy in the 1950s up to the early 1960s. Ostensibly because of konfrontasi with Indonesia, all local government elections were suspended in 1964. Despite calls by the opposition, as well as by the Athi Nahappan Royal Commission of Enquiry set up by the government to look into the workings of local authorities, for the re-introduction of local elections, these were abolished through an Act of Parliament in 1974. Significantly, the opposition used to win many of these local government elections not only in the new villages but in major towns like Georgetown, Ipoh and Malacca too.
Indeed, the BN has amended the Constitution, the election laws and regulations perennially so as to tighten its grip over the electoral process and thereby eliminate the ultimate surprise: a change of government from the BN to an opposition one at the federal level.
Erosion of SPR’s autonomy
In the original Merdeka Constitution, an impartial Election Commission was put into place. Since then, various Constitutional amendments have transformed the SPR into a shell of its original self. These amendments are discussed below.
- The Constitution (Amendment) Act of 1960 amended Article 114 (4) to provide for the removal from the SPR of any member who ‘engages in any paid office or employment outside the duties of his office’. This was an attempt to remove the then chairman of the SPR, who had displayed much independence and was non-partisan in conducting the division of constituencies for the 1959 election and then, the re-delineation of constituencies in accordance with the new constitutional provisions (which among other things required that the disparity among constituencies be not more than 15% from the average constituency size). His removal failed.
- The Constitution Amendment Act of 1962 was another attempt to remove the chairman but it also increased the government’s powers of control over the SPR by empowering parliament to determine the terms of office of the SPR. More importantly, the constituencies earlier delineated by the SPR were annulled by the Act thereby retaining the 1959 constituencies. The method of apportioning constituencies among states then in use was also repealed. The new 13th Schedule was added to the Constitution with two important consequences. First, the pre-independence 2 to 1 rural weightage (lowered to within 15 percent of the average constituency as recommended by the Reid Commission) was restored. Second, power to determine constituencies was transferred from the SPR to the party in power. Henceforth the SPR would only delineate and recommend new constituencies to the prime minister who would then table it in parliament where only a simply majority sufficed. The PM could also make changes to the recommendations “after such consultation with the SPR as he may consider necessary”.
- The Constitutional Amendment Act (No 2) of 1973 removed the power of the SPR to apportion constituencies among the various states. Both the number of constituencies and its apportionment among the various states are now specified in the Constitution (Art 46) and thus amendable at any time provided it receives a two-thirds’ majority support. The Act further replaced the 1962 requirement contained in 2c of the13th Schedule, with respect to the 2:1 variation in the size of constituencies, with the new stipulation that “a measure of weightage ought to be given to such (i.e. rural) constituencies”. This new wording remains till today allowing for rural weightage but without clearly limiting it.
- The Constitution (Amendment) (No.2) Act of 1984 removed the upper 10 year limit for constituency reviews. Thus reviews do not need to be conducted even after 10 years. More importantly, a new clause to Article 113 provides for the review of any affected area by the SPR whenever there is a change in the number of seats in parliament or any state assembly. This means that the party in power can effect a change in the constituencies at any time and for any portion of the Federation or any state by merely varying the number of seats in the Dewan Rakyat, or those of a state assembly.
The clause further absolves all such reviews from strict compliance with the principles of constituency delineation contained in the 13th Schedule These latest amendments give the ruling coalition much flexibility in reviewing constituencies. Other than the SPR initiating a review after 8 years, the government of the day can change the number of seats in parliament or the state under its control, and then call the SPR to conduct a review. And this can be done without adhering to the rules binding normal reviews.
In effect, the ruling coalition has assumed effective control over constituency delineation as well. The review can be conducted earlier than 8 years since the last review. There are no longer clear limits to rural weightage. And all reviews are subjected to the PM’s amendment before being submitted to parliament for a simple majority approval. Under the circumstances, the rules of constituency delineation are henceforth largely nominal in nature intended to lending legitimacy to the wishes of the ruling coalition.
Reforming the system
Instead of indulging in the politics of exclusion and denial, the BN government should endeavour to make politics accessible to all. Without amending any laws, the SPR could be directed to look into issues such as:
- rectifying the mal-apportionment of the constituencies wherein some urban constituencies are more than four times bigger than the rural ones (in terms of population size), thereby undermining the principle of one man one vote;
- providing fair access to the mass media and curbing lies and misinformation in the media;
- insisting on a public declaration of electoral finances by all candidates;
providing for longer campaign periods so that the people can be informed of the issues;
- allowing open-air rallies, apart from ceramahs to be held;
introducing an automatic system of voter registration;
- cleaning the electoral rolls to eliminate ‘phantom voters
making the system of postal voting available to all, not only members of the armed forces, and making the process more transparent.
It will be a long wait before the BN delivers on such electoral reforms. Malaysians like us must wake up to push for these reforms ourselves. Clearly, this has been the intent of Bersih 2.0.
Extracts from an article first published in Aliran Monthly 2002, 22(3): 2-10).