[Editor’s Note: This is the sixth and final entry in our symposium on “Constitutional Implications of the Malaysian Tsunami.” The introduction to the symposium is available here.]
—Kevin YL Tan, National University of Singapore
We often forget that we can win an election simply by making sure that none of our opponents can win. Electoral systems and rules can be easily manipulated to favour certain political parties and candidates as is often done, and in that respect, Malaysia is no exception. I wish to highlight three systemic problems that have plagued Malaysia for many years: (a) the sub-optimal working of the single plurality or first-past-the-post system of voting; (b) the problem of malapportionment – where some constituencies are much larger than others – causing a serious dilution of representative voices; and (c) the lack of anti-hopping laws to prevent post-election party switching.
Gaming the Simple Plurality System
The simple plurality or ‘first-past-the-post’ system of voting was introduced in Malaysia in its first and only pre-independence election in 1955 and has remained in use till today. The mode of voting was not discussed in any detail by the Reid Commission who concerned itself more with electoral qualifications and constituency delineation. There was an assumption that a system of voting that worked well for the United Kingdom would work just as well in Malaysia.
However, the fairness and working of the simple plurality system of voting is also premised on several assumptions. First, universal suffrage; that all adult Malaysians are each given one vote and are not unreasonably denied the right to exercise it. Article 119 of the Federal Constitution specifies that every citizen who is aged 21 years or older and is ‘resident in a constituency’ is entitled to vote in that constituency. There is no discrimination between voters. Second, that each voter has an equal voice in the outcome of the election. In other words, all votes should carry the same weight. This requires that the populations in each constituency to be approximately equal in size and that each constituency to be represented by a single member in the Federal Parliament. The third assumption is that the candidate with the most votes will win the seat. Under the simple plurality system of voting, a candidate only needs to poll more votes than any other candidate to win the seat.
Such a system can be said to reflect the will of the majority only if the electorate is presented with a binary choice. Thus, if there are only two candidates, the candidate who polls the most votes necessarily also obtains the majority of the vote. However, this becomes extremely problematic when there are more than two candidates. Without the need to secure an absolutely majority, it is possible for a candidate to be elected with minority of the total votes cast. For example, Hiew King Chew (PR-DAP) won his seat in Kota Kinabalu in the 2008 general election by securing only 33.8% of the vote. In the four-way fight, Hiew pipped his closest opponent, Christine Liew (PR-PKR) by a mere 0.4% of the vote. The majority of the 9,464 voters – at least 66% – did not vote for Hiew.
Two related problems arise in such a scenario, one compounding the other. First, questions of legitimacy will always dog a candidate who secures a seat with a minority of votes. Second, the number of seats won may not be commensurate with the popularity of the winning party. Thus, in 2004, the BN secured a whopping 90.4% of the (198 out of 219) seats in the Dewan Rakyat even though it secured just 63.9% of the popular vote. It is even possible to lose the majority vote and still win the election, as we saw in GE13 in 2013. In that election, the BN won 133 of the 222 seats with only 47.38% of the popular vote whereas PKR obtained 50.87% of the popular vote but won only 89 seats. This was not the first time this has happened. In 1969, the Alliance won 74 of the 144 seats in the Dewan Rakyat with just 44.3% of the vote.
When Some Voters are More Equal Than Others: The Problem of Malapportionment
The problem of representation is exacerbated by the ease with which electoral boundaries in Malaysia may be altered to favour the incumbent party. This has not always been the case. In 1956, the Reid Commission recommended the establishment of an independent Election Commission which would, among other things, be responsible for the delineation of electoral boundaries. Noting the disparity in the populations in urban and rural areas, the Commission nonetheless recommended that ‘the number of votes in any constituency should not be more than 15 per cent above or below the average’ for each State. (Reid Commission Report, para 74). This scheme was embedded in Part VIII of the 1957 Federal Constitution and the Reid Commission proposed that ‘the first redistribution should take place after the election of the first Parliament and before the election of the second.’ (Reid Commission Report, para 76). In the interim, the Commission further proposed that the 52 constituencies from the 1955 election be retained and then divided into two (Reid Commission Report, para 75).
The first parliamentary election of independent Malaysia took place in August 1959 and the Alliance, which swept all by one of the 52 seats in 1955 with a majority of 81.7%, suffered a loss in popularity, winning only 51.8% of the popular vote and 74 of the 104 seats. In accordance with the Reid Commission’s recommendation, an electoral re-delineation exercise was conducted by the three-man Electoral Commission comprising Datuk Dr Mustafa Albakri Hassan (Chairman), Lee Ewe Boon, and Ditt Singh.
The Alliance government, alarmed by its loss of popularity, and concerned that the re-delineation would dilute its traditional voter base in the rural constituencies, proceeded to amend the Constitution. The first amendment in 1960 (Act 10 of 1960) amended Article 114(4) to provide for the removal of any member of the Election Commission who ‘engages in any paid office or employment outside the duties of his office’. Many observers were convinced that the change was designed to remove the fiercely-independent Chairman, Mustafa Hassan. If this was the plan, it proved unsuccessful as he remained in office for another seven years, till 1967.
Unhappy with the outcome of the first post-independence delineation exercise, the Federal Government sought to negate the Commission’s 1960 report by passing another constitutional amendment (Act 16 of 1962). This time, the independence of the Commission insofar as constituency delimitation was abrogated and the 15% allowable deviation in size of voting population between urban and rural constituencies was increased to the pre-independence ratio of 1:2 by way of a new 13th Schedule to the Constitution. This amendment effectively annulled the Election Commission’s 1960 delineation report, paving the way for a new delineation exercise that would weigh heavily in favour of the rural constituencies by creating smaller Malay-dominated constituencies and much larger Chinese-dominated constituencies. In any case, all delineation reports had now to be reported to the Prime Minister who will in turn table them ‘with or without modifications’ to Parliament for approval by a simple majority. The power of the Election Commission was further diluted in 1973 by the Constitution (Amendment) (No 2) Act (A206) when the Commission’s power to apportion constituencies among the various states was removed. Section 2(c) of the 13th Schedule, which limited the deviation between rural and urban constituencies to 2:1 was amended and section 2(c) now provides that while ‘the number of electors within each constituency in a State ought to be approximately equal’, the Commission had to give due regard to ‘the greater difficulty of reaching electors in the country districts and the other disadvantages facing rural constituencies’ and ‘a measure of weightage for area ought to be given to such constituencies’.
With this change, the Electoral Commission – now firmly under the control of the Prime Minister’s Office – had an unfettered discretion to create constituencies of any size, especially in the rural districts. This led to the constant government gerrymandering to favour the ruling BN by maximising the impact of constituencies favourable to them and minimising the impact of opposition wards. The discrepancies are staggering. In GE14, the largest constituency in the state of Selangor was the opposition-held Bangi constituency which had 178,959 voters. This constituency had previously been known as Serdang and had, in GE13, 133,139 voters. It was enlarged in 2018 with the addition of Kajang constituency which has over 60,000 voters. On the other hand, the smallest constituency in Selangor was the BN-controlled Sabak Bernam constituency with only 37,126 voters. Each constituency is represented a single member in the Dewan Rakyat even though Bangi is 4.8 times larger than Sabak Bernam, voter-wise.
Changes to constituencies and their sizes can be made at will. Prior to 1984, the Election Commission was mandated to conduct a delineation exercise every 8 years, with the exercise to be completed within 2 years. The upper limit of 10 years for such a review was qualified by the Constitution (Amendment) (No 2) Act (A585) to trigger a review if new states are added to the Federation or if Parliament changes the boundaries of any State. More startlingly, Article 113(3A)(i) provides that a review may take place if there is a change in the number of members in the Dewan Rakyat under Article 46. Thus, an incumbent government with a command of two-thirds of the seats in the Dewan Rakyat can easily effect such an amendment, triggering a review of electoral boundaries.
Freedom of Association or Freedom to Defect: The Case for Anti-Hopping Laws
One persistent problem in Malaysian elections is the habitual switching of alliances and party membership by candidates and elected members. This is made possible because of the absence of anti-hopping laws. As such, there is no penalty for anyone ‘crossing the floor’ or simply resigning from their party. An attempt by the State of Kelantan to put a stop to this in 1991 failed as the Supreme Court declared (in Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor  1 MLJ 697) that any state law that penalized a member of a political party for resigning his party was void as it contravened his right to the freedom of association under Article 10(1)(c) of the Federal Constitution. In that case, the respondents had been elected into the Kelantan Legislative Assembly under the PAS banner but later resigned and crossed over to the BN. Pursuant to Article 31A of the Kelantan Constitution, the State Assembly passed a resolution stating that the respondents had ceased to be members of the Assembly.
The judgment is curious and probably wrong. The right to the freedom of association is a derogable right. Article 10(2)(c) allows Parliament to make law restricting this right provided it deems it ‘necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.’ It may be argued that allowing legislators to switch parties or alliances in mid-stream threatens a state’s political stability and public order. It may even be argued that allowing such practices offends ‘morality’ since this encourages vote buying and corruption as has been alleged in practically every recent election. Even in GE14, as the electorate waited anxiously for the results to be announced, there was much talk about certain politicians being attractively enticed to defect to the BN.
Quite clearly, the single plurality system of voting is not designed to secure a democratically representative winner in anything other than a straight contest between two candidates. Advocates of this system will point to its advantages —the ability to produce a clear winner in an electoral contest and thus ensure greater political stability, and the reduction of marginal parties in the legislature. Clear parliamentary majorities are necessary if any government is to govern effectively and the single plurality system goes a longer way in ensuring this outcome than any of the other systems. To enjoy the advantages of the simple plurality system and ensure majoritarian legitimacy, it may well be useful to modify the current practice by requiring a second round ‘run-off’ vote if the winner in the first round fails to obtain an absolute majority. This ‘second ballot’ system of voting has been used effectively in France. The advantage of this system is to eliminate the weakest candidates and require voters to rethink who, among the remaining two candidates, will receive his or her vote.
Reforming the electoral delineation system is both easier and harder. The solution is simple: Go back to the practice as proposed by the Reid Commission and have an independent Election Commission undertake the delineation exercise that allows no more than at 15% deviation between the largest and smallest constituencies. The difficult part is in amending the Constitution yet again. The current PH Government does not have the necessary two-third majority to do this, and this system is set to remain for some time yet. Of course, if the Government can appoint respected personalities to the Election Commission and consciously refrain from interfering in the Commission’s work, this will go a long way to stabilising the Commission and developing a new ethos.
Finally, there is a need to institute anti-hopping laws. In earlier posts in this blog, both Jaclyn Neo and Andrew Harding have argued in favour of anti-hopping or anti-floor crossing provisions to ensure smooth and stable transitions and maintenance of government. However, faced with a Supreme Court decision that outlaws this practice, it may well be necessary to amend the Constitution to make this an explicit proviso to Article 10. But this is easier said than done given the current Government’s lack of a two-third majority in the Dewan Rakyat.
Suggested citation: Kevin YL Tan, Winning GE14 Despite the Odds: Why Malaysia Needs a Fairer Electoral System, Int’l J. Const. L. Blog, Jun. 28. 2018, at: http://www.iconnectblog.com/2018/06/winning-ge14-despite-the-odds-why-malaysia-needs-a-fairer-electoral-system/