Post-GE14, a new Malaysia but old system

Before the 14th general election (GE14), then-opposition leader Dr Mahathir Mohamad said: “We must win big. The people of Malaysia need to show that there is a people’s tsunami in this country.”

Back then, the prime minister-to-be was desperate to emerge victorious despite the odds stacked against his coalition.

On May 9, the people’s tsunami did indeed change the course of history, ending over 60 years of Barisan Nasional (BN) rule and lifting Pakatan Harapan (PH) to federal power.

But just because PH won the election doesn’t mean that there were no challenges along the way. The BN government authorised the redrawing of boundary lines for constituencies, reminding Malaysians of illiberal concepts such as gerrymandering – the manipulation of district boundaries to establish political advantage – and malapportionment – creating seats of excessively disproportionate size.

Malapportionment is prevalent. Looking for variations to the 33.33% variance standard applied by the 1962 version of the 13th Schedule of the constitution, we found that 64 different federal constituencies were severely malapportioned. In Johor alone, 27 of the 56 seats were malapportioned.

In Selangor, the 16,274 voters of the Sungai Air Tawar state constituency were over-represented at the expense of the 74,023 voters in Subang Jaya, whose constituency comprises 171.64% of the Selangor state voter average.

While the 13th Schedule permits for over-representation on the basis of geographical area, the Election Commission (EC) has consistently abused this provision. State seats such as Igan, Sarawak, and federal constituencies such as Padang Rengas, Perak, are over-represented and cover only small areas of land.

Across Malaysia, parliamentary constituencies are unevenly allocated. Selangor has 16.2% of registered voters but only about 10% of seats. Meanwhile, East Malaysian states have 15.7% of voters but occupy about 35% of parliamentary seats. Clearly, the unfair electoral system disenfranchises and silences the people whom our democracy is supposed to represent.

PH’s victory in GE14 was not only a repudiation of BN rule, but also an unprecedented triumph over electoral malpractices. If the political preference of voters had not flipped severely malapportioned seats such as Labis or Sungai Besar, BN would now be busy formulating the 2019 budget and Musa Aman would not be hiding in London.

PH, as the victor, must now revamp a system which allows politicians to choose the voters. Of primary importance is an independent EC. In the UK, a Speaker’s Committee reviews and recommends all electoral commissioners for approval by the queen. In South Korea’s nine-member National Election Commission, the president, national assembly and chief of justice of the Supreme Court each appoint three commissioners.

Appointed commissioners should be independent of any political party or government. In Canada, the chief election commissioner can only be removed by the governor-general for cause on a joint address of Parliament. In South Korea, any of the three appointees from the Supreme Court must become the chair of their commissions.

The Dewan Rakyat must end the practice of approving electoral maps, which turn an electoral issue into a legislative issue. In Canada, independent commissions in each province revise electoral boundaries, consulting with the people through public hearings. Elections Canada, not the politicians, makes the final decisions on boundaries and enforces new electoral maps for state and federal constituencies.

Toppling a culture of apportionment requires firm constituency apportionment limits. NGOs such as Tindak Malaysia recommend no more than 10% in variation in the peninsula and 15% in East Malaysia from state constituency averages. Bersih recommends a maximum deviation of 33% for rural constituencies and 15% for urban ones. Regardless, the EC must try as hard as possible to ensure that the principle of one person, one vote is upheld.

And if the goal of elections is to ensure a fair and just representation of Malaysians, then the interests of a few states shouldn’t impact the formation of our federal government. The share of MPs in over-represented states such as Sarawak and Sabah should be decreased relative to under-represented states such as Selangor through revisions to Article 46 of the Federal Constitution.

Modifying East Malaysia’s share of MPs in the Dewan Rakyat is a controversial idea. But forward-looking people will recognise that serving East Malaysians doesn’t only include seats in the Dewan Rakyat and appointments in ministries and the judiciary. Instead, protecting East Malaysian interests requires empowered and purposeful democratic institutions.

Reforming the Dewan Negara would be an excellent first step in this direction. The current system comprises senators appointed by state legislatures and the Yang di-Pertuan Agong. Senators, who usually come from the ruling party, passively review legislation passed by the Dewan Rakyat. Modelled on the aristocratic and ineffective House of Lords in the UK, the present Dewan Negara is drowning in political subservience.

The Dewan Negara should instead by modelled on the US Senate which provides the power of advice and consent to executive positions within the government and judiciary through select committees. The US Senate can also amend, approve or reject bills coming from the House of Representatives, the US equivalent of the Dewan Rakyat. The Senate can also reject bills passed by the House of Representatives, forcing legislators to achieve consensus on all issues.

Senators in the reformed Dewan Negara must be elected and held accountable to the people. Considering East Malaysia’s large land mass, distance from the peninsula and current share of seats in the Dewan Rakyat, a third of the seats should be allocated to Sabah and Sarawak.

Strengthening the Dewan Negara would be the catalyst for supportive and empowering governance for all Malaysians. Government nominees would be vetted and approved, ensuring accountability and coherence in policy. East Malaysians could also work with their peninsular colleagues in both houses of Parliament to protect their interests.

Malaysians should cut through the talk of a ‘new Malaysia’ and remember that our system is no more virtuous than it was before GE14. It takes time to construct electoral democracies, but it would be in PH’s best interests to begin building one now.

In 2021, the Sarawak state elections will test whether the government is serious about protecting the ballot box and building strong institutions. If the government lets it fall by the wayside, the earthquake of GE14 might be a one-shot deal, and malapportionment will remain king.

*Peak Sen Chua wan an intern with ASLI Centre for Public Policy Studies (CPPS).

This article was published in Free Malaysia Today on August 11, 2018.