OUR electoral system is in a mess. This I got from attending and volunteering with the recently concluded Bersih People’s Tribunal on the 5 May 2013 general election.
Many have touted the 13th general election since independence (GE13) to be the most hotly contested in our nation’s history. That’s a fair assessment. Tensions rode high amidst talk of illicit ballot boxes and “foreigners” impersonating voters.
However, it’s not the “foreigner watch”, which I personally think is racist and problematic, that Malaysians should be most concerned about. The truth is that much of the election was already won before polling day. And what we should be most concerned about are the numerous amendments that have systematically opened up the electoral system to manipulation. These worrying amendments have also placed the Election Commission (EC) under the ruling party’s control.
What are some of the most damaging provisions in these amendments, and how did they come about?
A crucial element in ensuring a fair election is an independent EC. This has been under threat from the very start even before independence was attained. EC members are appointed by the Yang di-Pertuan Agong. In our constitutional democracy, that means that the prime minister advises the monarch on who gets selected as an EC member.
The Reid Commission originally proposed that these appointments enjoyed “the confidence of all democratic political parties and of persons of all communities”. This specific wording, however, was watered down by a working group of British officials, rulers’ representatives and Alliance members. It now reads that EC members must “enjoy public confidence”.
This broad and vague wording dilutes the EC’s independence because it reduces the standard of acceptability for an EC member. The original wording would have ensured that an EC member must have the confidence of both government and opposition parties, and also that of Malaysia’s multiethnic community. The current phrase in the law in fact makes the standard of appointment much lower.
Indeed, there have been accusations that the EC now functions as a government department and not as an independent, impartial body. Currently, all seven EC members are retired civil servants. To compound matters, the EC is in fact listed under the Prime Minister’s Office (PMO) on the PMO website. The EC’s deputy chair, Datuk Wan Ahmad Wan Omar, has also described himself as a government servant “to this day”.
The EC’s independence is also affected by the control the ruling party exercises through Parliament. Parliament determines the EC’s remuneration and may also provide for the “terms of office of members … other than their remuneration”. Parliament may also overrule any rules and regulations that the EC makes on the conduct of elections through passing a law on the matter.
Of most concern is how the Barisan Nasional (BN) government has demonstrated its willingness to even amend the Constitution to assert control over the EC. In November 2007, a bill was tabled in Parliament to increase the EC chair’s retirement age from 65 to 66. The EC chair at the time, Tan Sri Abdul Rashid Abdul Rahman, was due to turn 65 on 31 Dec 2007. The constitutional amendment ensured that he oversaw the next general election, which was held on 8 Mar 2008.
Perhaps the most damaging amendments that have affected the EC’s independence were the 1962 changes that removed their power to decide on delineations. Our original constitution stated that the EC would conduct elections, prepare and revise electoral rolls for such elections, and delimit constituencies. It did such an independent job of delimiting constituencies that in 1962, this power was removed. From making changes on constituency delineations, the EC was reduced to only recommending them.
The constitution was amended in 1962 by the Alliance government, the predecessor to the BN, to include the Thirteenth Schedule, which governs delineation. This Schedule requires the EC to submit a draft report on proposed delineations to the prime minister, who may modify the report, before it is presented to the House of Representatives for approval by a simple majority. If the House of Representatives does not approve the proposed delineation, the prime minister may amend the draft after consultation with the EC and re-present the draft for approval.
The difference in the number of electors in each constituency was also systematically changed over the years. In the beginning, the difference between each constituency could not exceed 15%. In 1962, this was amended to 50%. And in 1973, this limit was removed altogether. This has led to the discrepancy today where the largest constituency, Kapar, has over 144,000 voters, almost 10 times more than Putrajaya’s 15,700 voters. It also explains why only 30% of voters, mostly from rural and semi-rural areas, can send 70% of parliamentarians into power.
There are troubling amendments that are more recent. A 2002 amendment to the Election Offences Act 1958 inserted section 9A, which makes the electoral roll final after it has been certified and gazetted, and removes it from judicial oversight. This has led to the courts declining to act, even when presented with evidence of fraud in the registration of voters on the electoral roll.
According to DAP Member of Parliament Charles Santiago, who testified at the People’s Tribunal, the EC informed him that it could not act once the rolls had been gazetted. He gave evidence on how one house in Klang had 60 names registered to it, which he said the EC acknowledged. However, he was told that nothing could be done.
There are also other concerns, such as the recently introduced advance voting. In the May 2013 elections, members of the army, the police, and their spouses voted on 30 April, five days before polling day. These votes were kept in the ballot boxes and only opened and counted on polling day. Concerns were raised over the security of these boxes and how party agents were not allowed to observe the boxes full-time.
Clearly, there is much that needs to be done. A first step would be for Malaysians to acquaint themselves with the salient issues, lest we be sidetracked with red herrings.
There was a lot of energy put into GE13 and much disappointment on all sides at the results. If we want to see results that are fairer and cleaner in future elections, we must begin by being ever-vigilant about any proposed legal amendments. These changes, as our history shows us, can affect the fairness of our electoral system in the years to come.
We must also start pushing the government to institute the changes that are needed to make our system fairer – for starters, by making the EC more independent and addressing the malapportionment in our constituencies.
We clearly have a long way to go to ensure these much-needed reforms take place. And much pushing to do to ensure the government of the day does what is right for the integrity of future elections. And we must. The cost of not doing anything would be what we have now – a compromised electoral system and unfair elections.
Ding Jo-Ann was a volunteer researcher and attendee at the People’s Tribunal organised by Bersih 2.0, which heard evidence on fraud and irregularities during the 5 May 2013 general election.
 See Lim Hong Hai, “Electoral Politics in Malaysia: ‘Managing’ Elections in a Plural Society”, in Electoral Politics in Southeast and East Asia (2002), p. 106.
 See Tey Tsun Hang, “Malaysia’s Electoral System: Government of the People?”, Asian Journal of Comparative Law (2010) Vol 5: Iss 1, Article 11, p.12.