ON HUMAN RIGHTS, JUSTICE AND PEACE ISSUES, LABOUR RIGHTS, MIGRANT RIGHTS, FOR THE ABOLITION OF THE DEATH PENALTY, TOWARDS AN END OF TORTURE, POLICE ABUSES, DISCRIMINATION...
Monday, January 13, 2020
Art Harun, Azmi Sharom, Zoe Randhawa RESIGN if no REAL Electoral Reforms? Don't be anti Free and Fair Elections?
ELECTORAL REFORMS - Well, the new Pakatan Harapan government, after being victorious in the last General Elections seems to have no more interest in this - now, that they have managed to get the 6 past Election Commission members to RESIGN allowing them to appoint their people in the EC - Art Harun is Chief, Azmi Sharom is Deputy, Zoe Randhawa(from Bersih) is also a EC Commissioner now...
114 Constitution of Election Commission (Federal Constitution)
(3) A member
of the Election Commission shall cease to hold office on attaining the
age of sixty-six years or on becoming disqualified under Clause (4) and
may at any time resign his office by writing under his hand addressed to
the Yang di-Pertuan Agong, but shall not be removed from office except
on the like grounds and in the like manner as a judge of the Federal
Court.
We recall that after GE14, the new government's position was '... There is no need to set up a tribunal
or a Royal Commission of Inquiry (RCI) to investigate allegations of
misconduct committed by the Election Commission (EC) in the run-up to
the 14th General Election.
WHY? "Following the latest
development with regard to the resignations of members of the Election
Commission, the issue over the setting up of a tribunal does not arise
any longer...."As for the RCI,
there is no need for it to be set at this point in time as the election
issues raised have been dealt with by the courts and will be addressed
by the new EC chairman,"
BUT the Minister was wrong ...because many issues like gerrymandering and constituency boundaries, etc will not be UNDONE...or corrected unless it was shown that the past EC Commissioners acted against the law
LATER the government bowed down to public pressure and they set up a TRIBUNAL '...to look into alleged offenses by six former Election Commission (EC) members...'
Then, in '....a 3-2 vote, the tribunal decided that any proceedings held would
be merely academic since the six former EC members had already resigned. Retired
Chief Judge of Sabah and Sarawak Tan Sri Steve Shim had said that the
proceedings are not in public or national interest as it would take up
time, energy, and expense....'
Interestingly, the Tribunal took a similar position of the government after GE14.
Just because the EC members resigned does not mean one should investigate the alleged wrongdoings or crimes of these former Commissioners....IT IS NOT RIGHT. If that be the principle, then could it also not be used for the former Prime Minister and former Ministers or former Chief of MACC, etc???
If the said Election Commission Commissioners did not exercise their powers in accordance to law, then their PAST ACTIONS including the Constituency delineation exercise prior to GE 14 would be INVALID - and the new EC (after the old Commissioners resigned) could CORRECT THINGS WITH A NEW CONSTITUENCY DELINEATION EXERCISE...if not, according to law, they have to wait for 8 years to correct the wrongdoings ...i.e. in 2026...which would be after the next General Elections(or after the next 2 General Elections)...Malaysians will thus have to suffer the injustices brought about the actions of the Election Commission done in 2018..
ONE BIGGEST ISSUES, in my opinion, are ... UNEQUAL SIZE OF CONSTITUENCIES...there are other issues
In the 2018 election, the largest parliamentary constituency, P102 Bangi
in Selangor, had 178,190 voters—about nine times of 19,592 voters in
the smallest, P207 Igan in Sarawak.
The opposition-held seat formerly known as Serdang has seen the number of voters spike from 133,139 in the 2013 general election to 178,959 now, following a redelineation of electoral boundaries by the Election Commission (EC).....In contrast, Sabak Bernam, the smallest constituency in the state that is held by the ruling Barisan Nasional coalition, has 37,126 voters,
A perusal of seats would see that many seats that would have been won by the Opposition had a larger number of voters ...compared to the then BN 'safe seats'...
Your rights of representation in Parliament is diminished if you come from constituencies with large number of voters...This is UNJUST > We are not talking about equal number of voters in all constituencies ...but the difference really should not be more than 10-20k.
EC Commissioners cannot be TERMINATED easily ...their position is safe until retirement age...Some how, in Malaysia the former EC Commissioners resigned on their own after GE14....But why is there no investigations or criminal actions against them...? WHY?
I wonder whether if it was determined that the then Election Commissioners broke the law, in the 2018 Constituency delineation exercise, then the constituency delineation would be INVALID...and, as such the Elections in all the Constituencies affected by that delineation exercise would be INVALID - and there may be a need for new ELECTIONS in all these constituencies based on the previous delineation exercise....Was this what the new PH government afraid of especially after they won in GE14?
AFRAID they must be for today, many Malaysians are getting more and more disappointed with PH following its failures to bring about fast the promised reforms. The recent Tanjong Piai election results indicates how disappointed Malaysians are...
There is also growing disappointment with the new EC Chief and Commissioners...as we continue to see allegations of abuse of government machinery/funds, etc ...and no action against perpetrators. EC now laments its lack of investigation and prosecution powers in dealing with election offenses. They are still setting too short and unjust 'campaign periods'. The rights to even campaign freely during elections are still impeded by permit requirements by others, other than the EC.
The Peaceful Assembly Act still does not allow for right to organise peaceful assembly without first having to give the police 5-days notice, getting permission from owners of public space, compliance with conditions of police...So, after nominations, there can be no public talks by candidates until the 6th day of campaigning...at the earliest, as the election period is none an exemption under the Peaceful Assembly Act???
The Election Commission is asking people to make complaints directly to the relevant enforcement agencies ...they could get the complaints and then submit themselves to the relevant agencies.
They could even come out with a comprehensive report after heach and every by-elections(or elections) and push the police or MACC or local council to act...
The EC could also be drafting and submitting laws or amendments to laws to make Elections FREE and FAIR...Could they not? Laws that will give powers to the EC to investigate and/or prosecute...
The EC could investigate the actions of past EC members...and submit a report and recomendations to the King, Parliament, public..
Post GE14, the new government set up the Institutional Reform Committee (IRC) in May 2018 but the REPORT AND RECOMENDATIONS OF THE IRC STILL IS A 'SECRET' - Malaysians have a right to know. They may even have other suggestions...or maybe even not agree with the recommendations of the IRC.
Then, there was the Electoral Reform Committee (ERC) in February 2019....and???
The PH government 'smartly' co-opted some of the leaders and key personalities of BERSIH and other HR Defender groups into government....thus weakening the public call for REFORMS.
From BERSIH - The Chair Maria Chin Abdullah was given a seat to contest now a PH Member of Parliament, Zoe Randawa appointed as EC Commissioner,Shahrul Aman quit as Bersih’s acting chairman to a job – as Education Minister Maszlee Malik’s press secretary. Mandeep of BERSIH is now a special functions officer for Multimedia and Communications Minister Gobind Singh. Art Harun and Azmi Sharom were also former active human rights defenders - now Election Commission Chair and Deputy.
FREE AND FAIR ELECTIONS still on hold ....If the former EC members acted against the law, the the 2018 delineation exercise may be 'INVALID' - then, we should just have new elections based on previous electoral boaundaries. New EC should now do a new delineation exercise and correct the wrongs of the past. If there is a need to increase number of Constituencies in some States, do it...NOW. One easy thing that could have been done was to increase campaign period to at least 30 days...but Kimanis also still 14 days, just like during BN reign??
Senatorial Elections - How long do Malaysians have to wait to vote in their Senators?
120 Direct elections to the Senate
Where in
accordance with Clause (4) of Article 45 provision is made by Parliament
for the election of Senators by the direct vote of electors -
(a)
the whole of a State shall form a single constituency and each elector
shall have as many votes at any election to the Senate as there are
seats to be filled in that election; and (b) the electoral
rolls for elections to the House of Representatives shall also be the
electoral rolls for elections to the Senate; and (c)
Articles 118, 118A and 119 shall apply in relation to elections to the
Senate as they apply in relation to elections to the House of
Representatives.
Local Government Elections - The Minisiter earlier said 3 years > We should be voting in our Local Councilors by end 2020...but looking at PH, many believe that PH will find some reason or another to delay and delay ...see what happened to the abolition of SOSMA, Sedition Act, Detention Without Trial....
Maybe Art Harun, Azmi Sharom, Zoe Randhawa and other good people should just RESIGN if PH is not serious about Electoral Reforms?
KUALA LUMPUR: Attorney General Tommy Thomas (pic) is "disappointed" that the tribunal set up to look into alleged offences by six former Election Commission (EC) members in the 14th General Election has decided not to proceed because it would be academic and expensive.
"I think right-thinking people in Malaysia would
question: Does it matter if it takes two months and is expensive to
inquire the truth?" he said to reporters on Friday (May 24) after the
tribunal announced its decision.
In
a 3-2 vote, the tribunal decided that any proceedings held would be
merely academic since the six former EC members had already resigned.
Retired
Chief Judge of Sabah and Sarawak Tan Sri Steve Shim had said that the
proceedings are not in public or national interest as it would take up
time, energy, and expense.
"If the majority took into account convenience, then it is
very disappointing. The minority recognised the importance of the
matter," said Thomas.
"Any of you who lived in Malaysia in the two to three years leading to GE14 would recognise these complaints," he added.
Thomas said there would be five separate recommendations on the matter to the Yang di-Pertuan Agong and the Prime Minister.
He
said the King would decide under Article 125(3) of the Federal
Constitution if the proceedings go ahead or otherwise, as the tribunal
panel only made recommendations.
He added that he would advise the government to release these recommendations to the public.
"I am very disappointed. I think all right-thinking Malaysians will be disappointed.
"All
of us who took part in the elections will be disappointed. To say that
the country can't afford time and convenience to investigate the matter
is not correct.
"The country can afford it," he said.
The
six former EC members concerned are Tan Sri Othman Mahmood, Datuk Md
Yusop Mansor, Datuk Abdul Aziz Khalidin, Datuk Sulaiman Narawi, Datuk K.
Bala Singam Karupiah and Datuk Leo Chong Cheong.
Bersih 2.0 chairman Thomas Fann also expressed disappointment with the decision of the tribunal.
"We
had been looking forward with the tribunal going on simply because it
would vindicate our assertions so far that we did not have free and fair
elections despite the result," he said.
In August 2018, the
electoral reform group Bersih 2.0 sent a letter to Prime Minister Tun Dr
Mahathir Mohamad and urged him to investigate the commission, alleging
that they had committed several offences, including malapportionment and
gerrymandering.
Fann said they would explore with lawyers the next course of action.
"Certainly
there is a sense that among ourselves and the public that justice
wasn't served today and we have to continue to seek justice in different
ways," said Fann.
Counsel K. Balaguru, who is acting for Bala
Singam, said they accepted the decision of the tribunal and would wait
and see what the Yang di-Pertuan Agong would do.
"Then it is up
to the Attorney General as advisor to the King to advise him on what
ought to be done. You see the irony in this," he said. - Star, 24/5/2019
Liew: No need to form tribunal or RCI over allegations of EC misconduct
Nation
Tuesday, 23 Oct 2018 4:07 AM MYT
By MARTIN CARVALHO, RAHIMY RAHIM and FATIMAH ZAINAL
KUALA LUMPUR: There is no need to set up a tribunal
or a Royal Commission of Inquiry (RCI) to investigate allegations of
misconduct committed by the Election Commission (EC) in the run-up to
the 14th General Election, says Minister in the Prime Minister's
Department Datuk Liew Vui Keong.
"Following the latest
development with regard to the resignations of members of the Election
Commission, the issue over the setting up of a tribunal does not arise
any longer.
"As for the RCI,
there is no need for it to be set at this point in time as the election
issues raised have been dealt with by the courts and will be addressed
by the new EC chairman," he said when answering a question raised by
Khoo Poay Tong (PH-Kota Melaka) in Parliament on Tuesday (Oct 23).
Liew,
who is also de facto law minister, noted that issues on electoral
misconduct including redelineation exercise were raised through election
petitions with the courts, where some were rejected.
He added that on Oct 15, EC deputy chairman Tan Sri Othman
Mahmood and four commissioners had agreed to end their tenure
prematurely on Jan 1.
He said the appointment of Azhar Azizan
Harun as the new EC chairman and new commissioners would see the
beginning of a new era of reforms for the EC.
To a question by
Tan Sri Annuar Musa (BN-Ketereh) on whether the EC's performance would
be affected by Azhar's appointment as the latter was an activist with no
administrative experience, Liew said it would not.
"Although he (Azhar) is an activist, I am certain he will discharge his responsibilities in a professional manner," he added.
Human rights lawyer Azhar, 56, or popularly known as Art Harun, is a well-known activist writer.
He was appointed to head the EC on Sept 15, replacing Tan Sri Mohd Hashim Abdullah whose tenure had been shortened.
Hashim's tenure was initially supposed to end in August, 2020.- Star, 23/10/2018
Bersih 2.0 wants RCI on GE14 misconduct after tribunal quits
Friday, 31 May 2019 02:50 PM MYT
BY EMMANUEL SANTA MARIA CHIN
Bersih 2.0 chairperson Thomas Fann
speaks to reporters during a press conference in Petaling Jaya May
31,2019. — Picture by Ahmad Zamzahuri
KUALA LUMPUR, May 31 — Electoral watchdog Bersih 2.0 today called for
a Royal Commission of Inquiry (RCI) into power abuse allegations that
dogged the previous Electoral Commission (EC) during Election 2018.
The group’s chairman Thomas Fann said an RCI was needed after a
tribunal on the matter decided that investigating the alleged
wrongdoings of six EC members in GE14 would be academic as they were no
longer in service.
“What is important is the process of investigation where the public
will find out what happened during the period running up to GE14, and
how the EC attempted to rob us of a free and fair election.
“The RCI is also to restore public confidence back with the EC, as we
can always have closed-door meetings, but anything not made public
would not satisfy the public,” he told a news conference here.
Fann said the proposed RCI should take a bigger scope compared to the one that guided the tribunal.
“There are those who might think Bersih is on a witch hunt, but that
is wrong, as this is part of our struggle for a better democracy;
whoever was wrong must be held responsible,” he added.
Bersih 2.0 suggested the RCI look further back into possible misconduct committed between May 6, 2013 and May 10, 2018.
The group also suggested former EC members such as its former
chairman Tan Sri Mohd Hashim Abdullah, his former deputy Tan Sri Othman
Mahmood called as witnesses in the proposed RCI.
Among the alleged misconduct outlined by Bersih include
gerrymandering through constituency malapportionment, publishing
misleading delimitation plans which did not reflect an area’s true
demography, implementing a flawed postal voting system, and the supposed
destruction of voters’ addresses in the electoral roll.
It also listed as offences the past EC’s decision to hold polling on a
working weekday, setting electoral campaigns as short as 11 days,
disallowing accredited observations by independent observers on polling
day, the refusal of EC officers to sign off on Form 14 and delaying the
announcement of the voting results, and stopping voters who had queued
up for hours earlier from casting their ballot once the clock struck
5pm, which is when polling used to end officially. - Malay Mail, 31/5/2019
A couple of weeks ago, the Elections Commission (EC)
issued the second notice for the re-delineation proposals for the state
of Selangor. As a response, non-governmental organisation Bersih 2.0
issued a media statement calling for 100,000 voters in Selangor to
object to the said re-delineation proposals.
Re-delineation is a
process whereby the EC will review the electoral boundaries of
Parliament and State Legislative Assembly constituencies. It will be
conducted at least once every 8 years.
The
reason why it is conducted is to ensure that electoral boundaries
comply with the principles enumerated under the Thirteenth Schedule of
the Federal Constitution.
These principles include the
administrative facilities available within the constituencies for the
establishment of the necessary registration and polling machines and the
maintenance of local ties.
The principles also include ensuring that the number of voters
within each constituency in a State ought to be approximately equal.
After
the review is made and the proposals are drafted, the EC will then
issue a notice in the government gazette and local newspapers of their
proposals for re-delineation and will display the proposals in the
public places for the public to see.
Within one month of
publication of the notice, if there are objections from any State
Government, local authority or 100 voters in a constituency, then the EC
must conduct a local inquiry for the constituencies where there are
objections.
In the local inquiry, representations can be made by
the objectors as to why the objection is made towards the proposals by
the EC.
The EC then takes into account the objection and may
issue new proposals. The updated proposal must again be displayed and a
notice must be issued. The process for submitting objections and local
inquiries will take place again.
Once the inquiries are
completed, the EC will then submit a final report to the Prime Minister.
The Prime Minister will then table the report and the re-delineation
proposals can be passed by Parliament by a simple majority.
At
this juncture, for the current re-delineation exercise, the EC has
completed two rounds of local inquiries for the states of Malaya, apart
from Selangor. The process in Selangor has been delayed after the State
government challenged the proposals in Court and this stopped the
process temporarily while the case was ongoing.
However, last
year the Kuala Lumpur High Court dismissed the judicial review by the
Selangor government, following a couple of Court of Appeal decisions
which held, amongst others, that the proposals cannot be challenged in
Court at this stage.
With the dismissal of the judicial review,
the re-delineation process resumed in Selangor. The EC has already had
one round of local inquiries. The second notice has been published and
the one month to submit objections for this notice is well underway.
EC
would want to finalise the whole process before the next General
Elections, so that the elections will take place with the new delineated
boundaries. As such, the final report on the re-delineation must be
completed and submitted to the Prime Minister before the next
Parliamentary sitting in March.
The current re-delineation
proposals have been widely criticised. Many say that the principles of
the Thirteenth Schedule have not been followed.
Over and above
these criticisms, what is most important is that the people understand
the significance and impact of re-delineation, especially since it
concerns our fundamental right to vote. If we are unhappy with the
proposals then we should make our views known to the EC.
The writer has been involved with some judicial review proceedings to challenge the current re-delineation proposals - Star, 5/2/2018
COMMENT | The watershed 14th general election marked a historic step forward in the path of electoral reforms.
The
outcome of GE14 proved that, despite high levels of boundary rigging
and polling day malpractices, an electorally aware population can
overwhelm all electoral odds.
After the dust of GE14 had
settled, noticeable changes in the electoral mood became visible during a
string of by-elections. The leadership change at the Election
Commission and the inclusion of NGOs like Tindak Malaysia have allowed
the evolution of democratic reforms.
Reflecting upon the first
anniversary of the historic general election, we from Tindak Malaysia
would like to share with readers our journey along this exciting road.
Before looking forward, it is important to step back in time and understand what Tindak Malaysia had faced previously.
Formed
around the time of the then-watershed GE12, which began the change
process, Tindak Malaysia is a loosely held electoral reform NGO,
comprising professionals from many fields.
We introduced and popularised the terms “polling agent”, “counting agent” and “barung agent” (abbreviated to Pacaba, which later became just Paca, since barung agents became irrelevant).
Our
volunteers studied election laws and created role plays of electoral
scenarios to enable volunteers to understand the polling processes. They
were taught how polls should be properly conducted.
The volunteers then trained trainers, crisscrossing the country to reach a wider audience in preparation for GE13. The Paca training was conducted in various languages to cater to participants.
These
training methods laid the foundation for the many Paca groups that
sprouted everywhere in preparation for GE14. In many polling stations,
trained Paca were able to stop counting malpractices and saved the
elections.
Unbalanced electoral boundaries
However, our
analysis showed that no matter how well the Paca guarded the process,
the election outcome was predetermined by unbalanced electoral
boundaries.
From 2011, a small group of volunteers with technical backgrounds began to explore the delineation of constituencies.
Politically
biased delineation is a decades-old issue. We wanted to empower the
electors to object meaningfully during the forthcoming redelineation
exercise.
As such, we initiated the first-ever civil society
effort in digitising nearly 8,000 polling districts, which are the
building blocks for constituency formation. We analysed existing
irregularities and proposed new, balanced boundaries.
In
2014, together with the Malaysian Bar, we organised a forum to engage
the legal fraternity in order to mobilise expert help in preparing
objectors for the upcoming redelineation exercise.
From the
outset, we emphasised the significance of malapportionment (unbalanced
constituency size), and not gerrymandering (irregular constituency
boundary) as the primary issue.
We collaborated with fellow NGOs,
Bersih and Engage, to conduct nationwide education roadshows. We
mobilised volunteers, developed templates and prepared objectors.
Despite
our groundbreaking efforts, the grossly imbalanced redelineation was
bulldozed through Parliament before the elections deadline.
Nevertheless,
the experience ignited enough public interest to impact the
pre-election conversation and somewhat neutralise the imbalances of the
redelineation.
Even before GE14, we were looking into electoral reforms in order to stop malpractices and ensure the independence of the EC.
In
2013, we reviewed the constitution and election-related legislation and
proposed amendments to tighten rules and remove loopholes.
This
proposal, which we named the Malaysian Electoral Reform Programme
(Merp), was submitted to both the prime minister and the opposition
leader. Of course, nothing came of that.
We later collaborated with several overseas Malaysians (members of Global Bersih) under the name Projek Beres to incorporate international best practices.
Changes after GE14
Following
the change of the federal government in 2018, our findings were
presented to those persons charged with reforming the system. These
included the Institutional Reform Committee (IRC) in May 2018 and
Electoral Reform Committee (ERC) in February 2019.
We are
satisfied that all of our work with Paca and redelineation has yielded
fruit in GE14 and now, with Projek Beres, we anticipate further reforms.
The
new federal government has revamped the top leadership of the EC. This
is a major step in the reform of a severely defective institution. No
longer seen as an adversary, we now work with the EC on electoral
reform.
For the first time, we were invited to be observers in the Cameron Highlands by-election. After that, we were asked to nominate presiding officers (ketua tempat mengundi) for later by-elections.
We have also participated in NGO-level discussions on
election offences, electoral roll discrepancies and issues with
delineation.
Severe malapportionment
One big challenge is the grossly imbalanced delineation of 2018 that has been gazetted and will stand for eight years.
Having conducted redelineation research since 2011, we have raised our concerns with the EC.
The biggest concern is the gross malapportionment, resulting in severely overpopulated seats like Rantau and Sandakan.
The
Federal Constitution offers no recourse, since the clause controlling
allowable seat size variation has been removed, leaving only the vaguely
worded statement that the “number of electors within each constituency
in a State ought to be approximately equal”, which is subject to
interpretation.
The requirement that “regard ought to be had to
the inconveniences attendant on alterations of constituencies, and to
the maintenance of local ties” is also open to argument and does not
offer firm guidelines.
While the EC has started looking into the
matter of redelineation, a revision can only be made before 2026 if the
number of parliamentary and/or state seats is changed through
constitutional amendment.
Ensuring sufficient facilities
One
of our proposals to EC is to investigate whether the constituencies
have sufficient facilities to conduct voter registration and polling. We
have identified some constituencies that have violated this
constitutional requirement.
For example, during the Semenyih by-election,
voters in Kajang Prison had to travel outside of their constituency and
into a neighbouring parliamentary seat to cast their vote.
Some voters whom we interviewed during the observation programme complained of difficulties in accessing the polling station.
Similarly,
for the Sandakan by-election, voters of Sim-Sim are required to vote in
a polling centre located in a different constituency. We expect there
will be other such challenges.
We have suggested to EC that this could be used as the basis to conduct an early redelineation.
In
Sabah, additional state seats were gazetted, but have not been defined
in the current delineation.
This means the last gazetted redelineation
in Sabah was in 2003. A new redelineation can therefore be conducted,
during which issues of malapportionment can be addressed.
Zeroing in on polling districts
We
have discovered that the building blocks of a constituency, the polling
districts, are key to the problem. We believe that if the definition of
polling districts can be controlled, malapportionment and
gerrymandering will become very difficult.
Odd-looking polling
districts, caused by selective inclusion or exclusion of elector zones,
will result in odd-looking constituencies, otherwise known as
gerrymandering.
Some polling districts, especially in the urban
areas of Selangor and Sarawak, are overpopulated and add to the
overpopulation of state and parliamentary seats, which results in
malapportionment.
For example, Kuala Baram in Miri, which is the
largest polling district in the country, has a bigger population than
Igan, which is Malaysia's smallest parliamentary constituency in terms
of electorate size.
Given the poor geographical correlation
between polling districts and polling stations, the allocation of
polling stations in Rantau and Semenyih resulted in crossed paths and
traffic jams which hindered the polling process during the respective
by-elections. We expected the same in Sandakan.
Suggestions
Our suggestions to the EC, IRC and ERC are:
Voters must be assigned to the right polling districts based on their geographical location;
Polling districts must be defined to reflect the existing and future development of the area; and
Polling districts population must be controlled according to practical considerations.
We
have suggested to the EC that a review of polling districts can be
conducted immediately since it requires no constitutional amendment.
Once
the polling districts are rectified, the EC can confidently delineate
constituencies that will fulfil all constitutional requirements. The EC
has reacted positively to our previous contributions and we await their
final decision on this.
Remaining challenges
The enthusiasm following GE14 and the refreshing changes within the EC were very heartening to our volunteers.
However, there are still challenges to be faced along this bumpy road.
One
big challenge is the bureaucracy of the EC. The top layer has been
refreshed, but the lower ranks are still mired in the old bureaucratic
procedures.
For example, after our volunteers were appointed as
presiding officers, sudden changes were made to the final appointments
without sufficient communication. We had to scramble to deploy people
who were able to absorb the changes.
This was a surprise, since
the very same bureaucrats had engaged well with us in discussions about
the election process and voter registration.
The second challenge
comes from the Malaysian public. The wave of enthusiasm that was
generated before, during and immediately after GE14, has dissipated.
We
realised this when our calls for observers in the Cameron Highlands,
Semenyih and Rantau by-elections didn’t attract even a single sign-up
from people outside of our group.
Having delivered GE14, the
public are now sitting back to enjoy the fruits. They have failed to
understand their ongoing role in the evolution of democratic reform.
We
have managed to expand our participation in the observer programme. We
hope the public will at least support the effort to clean up the
electoral roll.
We are witnessing a dramatic overhaul of our
election system. We now have a credible EC that, having won public
confidence, is spearheading reforms.
We, in Tindak Malaysia, are honoured to be part of these electoral reform activities.
While
redelineation may take time, other reforms are ongoing. We will
continue to work with all groups and contribute our best to a cause that
will mature our elections process and allow us to elect a government we
deserve.
TINDAK MALAYSIA is a pro-electoral reform NGO committed to uniting Malaysians through socio-economic empowerment programmes. - Malaysiakini, 12/5/2019
Lining up to vote during GE14 in Kuala Lumpur, 9 May 2018. REUTERS/Athit Perawongmetha
Ever since the Reformasi years after 1998, discussions on reform of Malaysia’s First Past the Post (FPTP) electoral system have taken up by scholars and activists. Important contributions by Lim Hong Hai, Donald Horowitz and Clive Kessler
have explored how FPTP interacts with, and reinforces, Malaysia’s
political divisions. Some have offered reform proposals: Horowitz
proposed criteria to consider electoral system reform, while Kessler
advocated for Australia’s Alternative Vote (AV). I joined the
conversation after 2008, unpacking how FPTP sustained Malaysia’s electoral authoritarianism and communalism under the rule of Barisan Nasional (BN), the multi-ethnic coalition dominated by United Malays National Organisation (UMNO).
But what needs to be done with the FPTP system itself after the victory of Pakatan Harapan (PH) in the 14th
general election (GE14) in May 2018 remains insufficiently debated. I
argue here that the problems with FPTP have become more stark than ever
after GE14, such that consideration of wholesale reform of how
Malaysians choose their government should be a top priority.
No “low-hanging fruit”
For many, electoral system change is a long term goal, and the more
realistic short-run objective should be curbing malapportionment and
gerrymandering while maintaining FPTP. This view rests on two
assumptions: first, that the political and legal obstacles in the way of
changing electoral systems are greater than those in the way of
correcting partisan gerrymandering and malapportionment; second, that
electoral system reform is an ideal instead of a necessity. The reality
is that both may not be true.
Let’s first examine the first argument, regarding the legal and
political barriers. Far from being straightforward fixes,
malapportionment and gerrymandering cannot be corrected and prevented
without some amendments to Malaysia’s federal constitution, to address
three problematic provisions which have enabled malpractices.
First is Article 46, which allows the parliament to arbitrarily
allocates seats across states and federal territories, and which has
allowed inter-state malapportionment to worsen since 1974. Second, the
demand by Section 2(c) of the Thirteenth Schedule for constituencies
within the same state to be “approximately equal” is compromised by the
vaguely-worded “area weightage” and the 1974 removal of a cap on maximum
deviation from state averages.
Third, Section 2(d) of the Thirteenth Schedule fails to limit
gerrymandering, with its weak demands for avoidance of “inconveniences”
and “maintenance of local ties”, with both terms undefined. Legislation
which strictly defines the four terms in Sections 2(c) and 2(d) might
help skirt the need for a constitutional amendment and allow the
Electoral Commission to draw fairer constituency boundaries within any
given state, but no correction of inter-state malapportionment is
possible without amending Article 46.
To make matters worse, the flawed seat boundaries introduced by the
Electoral Commission in 2015 for Sarawak and 2018 for the States of
Malaya cannot be corrected until they are ready for review in 2023 and
2026 respectively. The eight-year interval, mandated by the
Constitution, may be skirted to force a new review only by amending
Article 46 to add at least a parliamentary constituency to every state
and territory that needs fixing. Even then, however, politics would be a
barrier: states with bargaining power—especially Sarawak, now with 19
opposition votes in the federal parliament where the new Pakatan Harapan
(PH) government lacks a two-third majority to carry a constitutional
amendment—will demand more seats than they warrant. Mitigation of intra-state malapportionment and gerrymandering may come with a huge price in inter-state malapportionment, defeating the purpose of correcting seat–vote disproportionality.
The peril of inter-state malapportionment cannot be understated. In
the 2018 election, the largest parliamentary constituency, P102 Bangi in
Selangor, had 178,190 voters—about nine times of 19,592 voters in the
smallest, P207 Igan in Sarawak. Even after excluding the four outliers:
Sabah, Sarawak, Labuan and Putrajaya, the picture is stark: the 22
constituencies in Selangor had an average of 109,776 voters, while the
14 in Pahang had an average of 58,856. Intra-state equal apportionment
will not correct the injustice between voters in Selangor, Pahang, and
the nine other states and the Federal Territory of Kuala Lumpur.
Facilitated by Article 46, from 1965 to 2005 the size of Malaysia’s
parliament grew like a teenager from 144 to 222 seats, and inter-state
malapportionment simultaneously worsened, thanks to two flawed
practices. First, there was no transfer of seats from
demographically-shrinking states to the growing ones, so that no
incumbents would lose their seat. Second, the numbers of seats was
increased to reduce the burden of constituency service for
parliamentarians in populous states—but this process disproportionally
benefited the government’s stronghold states regardless of electorate
size. Any proposal to add seats in order to open the door to early
redelineation is bound to deepen, not lessen, the problem.
Mahathir Mohamad speaks during an election campaign rally in Kuala Lumpur, 6 May 2018. REUTERS/Athit Perawongmetha
The “wrong” two-party system
What about the argument that a large-scale rethink of the electoral
system isn’t necessary? For nearly three decades since 1990, opposition
parties and civil society groups have been advocating for a
two-coalition system as the alternative to UMNO–BN’s one-coalition
dominance. Modelled on UK’s two-party system, the idea of two-coalition
competition was to have BN and a second multi-ethnic coalition competing
for the middle ground and taking turns to form government.
Multi-ethnic opposition coalitions were formed thrice to take on BN
in 1990, 1999 and 2013, but all of them disintegrated after their
failure to dislodge BN. Thrice, the two oldest opposition parties, the
Pan-Malaysian Islamic Party (PAS) and the secular Democratic Action
Party (DAP) parted over PAS’ aggressive push for Islamisation. The
fourth opposition coalition, Pakatan Harapan (PH), finally defeated BN
this round. But BN seems to be biting the dust. With its ethnic Chinese
and Indian support depleted, BN is virtually reduced to UMNO and its
Borneo allies, which virtually all left UMNO within two months. Sarawak
BN has gone independent in June 2018 as Gabungan Parti Sarawak (GPS), while UMNO Sabah has recently teamed up with other Sabah parties to form a new coalition, Gabungan Bersatu Sabah (GBS), just falling short of pulling out from its parental party.
While not happening at the national level, bipartism is emerging in
four regions: PAS against UMNO in Kelantan and Terengganu; PH against
UMNO for the rest of Peninsular Malaysia; GPS against PH in Sarawak; and
PH and its regional ally Parti Warisan Sabah (Warisan) against GBS in
Sabah. The four systems may be consolidated into two: PH versus UMNO-PAS
in West Malaysia, and PH-
Warisan versus GPS-GBS in West Malaysia.
Already, UMNO and PAS are fiercely attacking PH’s policies, such as
ratification of the International Convention on Elimination of All Forms of Racial Discrimination (ICRED),
as selling out Malay-Muslim rights. Meanwhile, the Borneo parties’ push
for autonomy may someday be upgraded to one for self-determination.
However, further consolidation of Peninsular and Borneo opposition
cannot happen because having PAS as an ally is too much an electoral
liability in liberal Sabah and Sarawak.
Amid mounting challenges from both the Malay heartland and the Borneo
periphery, PH’s communal and regional opposition have no incentive to
offer an inclusive and cohesive platform for the whole of Malaysia.
Their immediate game is to wrest legislative seats from PH’s Malay and
Borneo constituencies in the next election, either to bring down PH or
to force a grand coalition government. Moderation and accommodation may
be on the cards when the prospect of power is within sight for UMNO,
PAS, and the Borneo opposition parties—but not before they damage PH’s
electoral base and strain Malaysia’s plural nation-state with their
Malay-Muslim and Borneo nationalist demands. In West Malaysia
particularly, a formal pact of UMNO-PAS would deliver a two-party system
that resembles more Sri Lanka than Britain: if the ethnic majority is
split between two blocs, while the minorities have only one viable
choice, then the salience of ethnicity and religion will likely grow,
with the median Malay, not the median Malaysian, playing kingmaker.
Permanent coalition’s susceptibility to implosion
The ultimate flaw of Malaysia’s party system lies in permanent
coalitions a la BN, which provides no avenue for internal competition,
and becomes prone to sub-competitiveness, infighting, or both. Under
FPTP, constituencies are allocated to component parties on a
near-permanent basis, normally based on ethnic composition of the
constituencies and previous contestation history. Given only limited
constituencies to contest, candidacy selection in component parties then
inevitably becomes top-down, allowing party warlords to field loyalists
over popular local leaders in strongholds. Combining the two, permanent
coalitions often suffers in both the failure to get the strongest
candidate from the strongest component party, and consequent infighting
over constituencies. Structural remedies employed by BN included
patronage for both voters and party elites, gerrymandering, and increase
of legislative seats. While these means did not always work for BN,
they must be off menu for PH if it wants real reforms.
Counter-intuitively, the absence of an unchallengeable dominant party
within PH, like UMNO within BN, may only make internal peace in PH
harder to sustain. Its largest component, Parti Keadilan Rakyat (PKR)
won 47 out of the 70 parliamentary constituencies contested but only 14
of its parliamentarians were appointed to the front bench. In contrast,
while Prime Minister Mahathir Mohamed’s Parti Pribumi Bersatu Malaysia
(Bersatu) contested 53 constituencies and won only 13, ten of its parliamentarians are given executive positions.
While a defence may be made for Bersatu, which performed poorly for
having to contest mostly in UMNO’s strongholds but delivered the
necessary swing to enable PKR and DAP to win marginal seats, such
over-representation in government is unlikely to be retained when PKR’s
president Anwar Ibrahim succeeds Mahathir as prime minister. However,
post-election cross-over may change the parties’ relative strengths, as
PKR and Bersatu had so far taken in three independent parliamentarians
and an ex-UMNO lawmaker respectively. If 40 more UMNO parliamentarians
crosses over to Bersatu, Bersatu with 54 parliamentarians will overtake
PKR (50) as the largest bloc in PH and may even challenge Anwar’s
succession.
Unless open and constructive inter-ally competition is allowed, PH
may soon sink into a battle royale as its component parties race to
steal lawmakers from UMNO and each other. If the permanent coalition
model under FPTP is retained, there might not be stability until an
UMNO-like dominant party emerges to dominate the ruling coalition—but
with such a party, reform is likely dead.
Electoral worker carries ballot boxes after the general election, Petaling Jaya, 9 May 2018. REUTERS/Lai Seng Sin
Making competition work
The ultimate critique against FPTP in Malaysia is not the
malpractices of malapportionment and gerrymandering, but its mismatch
with Malaysia’s divided society, which produces parties with strong
communal or regional bases.
Under FPTP, power-sharing can only take the form of permanent
coalition, but the four attempts to establish a two-coalition system
since 1990 have consistently failed. A second multi-ethnic coalition can
only be sustained if the winner’s victory is not too big to deplete the
losers’ hope—which is unfortunately now the case for BN. Instead of
promoting moderation in societies without deep divides, FPTP in Malaysia
radicalises the desperate opposition, which in turn places strain on
the centrist ruling coalition.
Further, permanent coalitions under FPTP have no room for internal
competition and bottom-up candidacy selection, which in turn breeds
infighting and implosion. Ironically, the stronger the landslide, the
likelier the ruling coalition may implode. BN’s ouster in 2018 could be
traced back to its 2004 landslide when its 91% parliamentary majority
induced arrogance and infightings that ushered in a political tsunami
four years later.
Multiparty democracy is about choosing an opposition as much as
choosing a government. What threatens Malaysia’s democracy is not
communal parties—which the ethnically, religiously and linguistically
diverse society naturally produces—but the wrong incentives that drive
government and opposition parties into malign competition. Malaysians
must stop thinking that what fits England would fit Malaysia. Instead of
a Westminster-style majoritarian democracy, a “consensus democracy”
where all groups freely compete, then share power through endless
possibilities of post-election coalition governments, may be more
compatible.
As radical as it sounds, moving away from FPTP to some form of
proportional representation electoral system may be the most realistic
solution to ensure political stability in Malaysia. But that
necessitates frank conversations and rigorous debates across the
communal and partisan divides. If Malaysia is to explore other
alternatives, be it Mixed-Member Proportional (MMP), Mixed-Member Majoritarian (MMM) or Party-List Proportional Representation (List-PR) as in neighbouring Indonesia, civil society groups and political parties must work together to start a national conversation and forge consensus. - New Mandala, 14/11/2018
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