May 9, 2018. A day that will be forever etched in the memories of Malaysians who witnessed the 14th General Elections ("GE14"). It was the day on which Malaysians witnessed, for the first time since the country's independence, a change in government. The 61-year-old Barisan Nasional coalition (and its predecessor, the Alliance Party), long synonymous with Malaysia, were ousted from power by the barely two-year old Pakatan Harapan coalition.
While we have witnessed with excitement or trepidation (depending on who is asked) the rise of interesting (and possibly controversial) developments in the Malaysian fabric since the change of government, the period leading up to, and immediately after, GE14 was also not without its share of dramatic events. This article discusses several notable events that took place during this period.
1 MALAYSIAN-1 VOTE?
Delineation is the process of dividing the Federation of Malaysia into Federal Constituencies (222 as of now) and the further division of those Federal Constituencies into State Constituencies (save for the 13 Federal Territories Constituencies) for the purpose of conducting elections.
Article 113(2) ("Article 113(2)") of the Federal Constitution ("FC") mandates the Election Commission ("EC") to review the division of the Federal and the State constituencies and recommend such changes as may be necessary to comply with the provisions of the Thirteenth Schedule of the FC ("Thirteenth Schedule").
On 28 March 2018, a mere six weeks before GE14, the Dewan Rakyat (House of Representatives) approved, by the requisite simple majority, a re-delineation report prepared by the EC. The report had been finalised after the EC had issued two redelineation proposals, the first in September 2016 and the second in January 2018. The re-delineation report that was approved was controversial for at least two reasons. First, from a timing perspective, it was tabled and approved in the Dewan Rakyat within one day, giving little time for debate notwithstanding the importance of the subject.
Second, the EC's recommendations in the report significantly increased the disparity in the number of voters in some constituencies. For example, the number of voters in the Damansara Federal Constituency increased by 76.16% from 85,401 voters in the previous general election to 150,439 voters for GE14. In comparison, the Sabak Bernam Federal Constituency had 37,126 voters for GE14. This means that a voter in Sabak Bernam has a vote which is equivalent to 4.05 times of a voter in Damansara. The report came under heavy criticism from civil society on grounds that it exacerbated the malapportionment, seemingly in favour of the government of the day.
Critics of the re-delineation report argued that the report went against the principle of "1 Malaysian-1 Vote", i.e. that each constituency should have an equal number of voters to allow for equal representation in government. It was also alleged that it did not comply with the guiding principles for re-delineation set out in the FC. We will now take several steps back to consider whether there is any legal basis for these allegations.
When the FC was first introduced on 31 August 1957, the parameters for a re-delineation exercise were set out in Article 116. Article 116(4) of the FC, among others, provided that the number of voters in each constituency shall be approximately equal after making due allowance for the distribution of the different communities and for differences in population density and means of communications but that such allowance shall not exceed 15%.
Article 116(4) was repealed and the parameters governing a re-delineation were transferred to a new Thirteenth Schedule pursuant to the Constitution (Amendment) Act 1962. The new Section 2(c) of the Thirteenth Schedule, among others, provided that the number of voters within each constituency ought to be approximately equal except that, having regard to the greater difficulty of reaching electors in the rural districts and the other disadvantages facing rural constituencies, a measure of weightage for area ought to be given to such constituencies "to the extent that in some cases a rural constituency may constitute as little as one half of the electors of any urban constituency". This was the start of the erosion of the "1 Malaysian-1 Vote" principle as the permitted allowance of deviation had been significantly increased.
In 1973, the words "to the extent that in some cases a rural constituency may constitute as little as one half of the electors of any urban constituency" were removed from Section 2(c) pursuant to the Constitution (Amendment) (No. 2) Act 1973. This amendment meant that the EC was free to assign such weightage as it deemed fit to rural constituencies without any clear-cut limitation to the exercise of its discretion.
It therefore can be seen that from the outset, the idea "one person – one vote" was not an absolute principle enshrined in the FC as variances were permitted to give weightage to rural constituencies. However, there was, at the birth of Malaysia, an inbuilt safeguard to limit the difference in the number of voters between constituencies to ensure some measure of equality to the power of "one vote" of Malaysians. Unfortunately, this safeguard was removed 45 years ago by the constitutional amendments of 1973.
Even if one accepts that the EC now has unfettered discretion to determine the weightage to be assigned to rural constituencies, it is clear that the significant increase (76.16%) in the number of voters in the Damansara Federal Constituency from the previous general election has unjustifiably increased the difference in the number of voters between that constituency and the Sabak Bernam Federal Constituency, both of which are situated in the State of Selangor. This gives credence to the arguments that the re-delineation report has exacerbated the malapportionment contrary to the envisioned objectives of the exercise.
While it is impracticable for remote rural constituencies to have the same number of voters as some densely populated urban constituencies due to geographical and accessibility limitations, the "1 Malaysian–1 Vote" principle may become slightly closer to reality if the FC is amended to reinstate a permitted variance between these types of constituencies.
As Article 113(2) prescribes an interval of not less than eight years between the completion of one re-delineation review and the commencement of the next review, the next review under that provision can only be commenced in March 2026. Alternatively, the Government may trigger a review under Article 113A of the FC by increasing the number of members in the Dewan Rakyat, which has remained at 222 since 2003. As the number of registered voters has increased by approximately 36% since then, it may now be appropriate to increase the number of members in the Dewan Rakyat. However, this will require the support of not less than two-thirds of the members of the Dewan Rakyat and the Dewan Negara (Senate) as it entails an amendment to Article 46 of the FC.