New Rules And Constituencies For New Challenges?
Appearances of unfairness can erode the credibility of the Election Commission
by Lim Hong Hai
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Amendments To Election Laws
Following the 2002 amendments to the Elections Act 1958, it is no longer possible to mount a legal challenge to the accuracy of the electoral rolls – thus no more Likas. Another amendment allows the Election Commission (EC) to raise the ceiling of election deposits. If significantly increased, the election deposits would be much more of a financial burden to opposition parties (more to DAP than to PAS) – than to the better-financed BN. It would thereby also reduce the resources of opposition parties available for campaigning.
Amendments were also made to the Election Offences Act 1954 to: (a) raise the ceiling of electoral spending by candidates (from RM30,000 to RM100,000 for a State seat and from RM50,000 to RM200,000 for a Parliamentary seat); and (b) make it an offence “to act or to make any statement with a view or with a tendency to promote feelings of ill-will, discontent or hostility between persons of the same race or different races or of the same class or different classes of the population of Malaysia in order to induce any elector or voter to vote or refrain from voting at an election or to procure or endeavour to procure the election of any person.” Electoral spending is poorly monitored by the EC and the higher spending now permitted mainly has the effect of better reflecting actual practice. The new offence of promoting “feelings of ill-will, discontent or hostility” is such a catch-all and something nearly impossible not to commit while campaigning that one can only wait and see how it is applied and enforced in actual practice.
In fact, in response to events in the July 2002 by-elections for the parliamentary constituency of Pendang and the State constituency of Anak Bukit in Kedah, the EC has proposed further amendments to the Election Offences Act that it considers necessary for controlling the campaign behaviour of political parties during elections and also for reducing “phantom” voters (more on this later). These additional amendments, if passed, would require political parties contesting elections to register with the EC and electoral candidates to sign a pledge of good behavior (or Akujanji). The EC would be able to refer to the courts any candidate who, in its opinion, has breached the Akujanji and this reference, if upheld, would disqualify the candidate.
The purpose of these proposed amendments, as explained by the EC Chairman, is to ensure that “any election candidate who indulged in unhealthy and violent campaigning would lose his right to contest” (New Straits Times, 12 February 2003). Again, the EC’s discretion in deciding when a breach of the Akujanji has occurred would be crucial should these additional amendments be made before the coming general election. In hoping that the new rules would be implemented fairly by the EC, opposition parties are also expressing their concerns from past experience.
The New Constituencies
In the book New Politics in Malaysia, I examined constituency changes (in 1974, 1984 and 1994) that were mainly directed at reducing the electoral importance of the non-Malay vote and thus enhancing the importance of the Malay vote. This had benefited UMNO – that is, until the 1999 election, when PAS won about as many Malay votes as UMNO. My concluding speculation was whether this would usher in a new phase in constituency delineation directed at the growing PAS threat. I also noted four methods in which this can be done. Question: Are there any signs that these methods have been resorted to in the 2003 re-delineation?
This of course requires much more careful analysis which requires time. However, initial impressions – and initial analysis by Ong Kian Ming, a co-researcher in a research project on the Malaysian electoral system – suggest that, in varying degrees, these methods seem to have been used in the 2003 re-delineation. It is worth noting that, for the first time, PAS joined DAP in a “walk-out” protest against the new constituencies when they were approved by Parliament. A DAP Member of Parliament also noted in discussion that (for a change) the re-delineation in 2003 was not directed at the DAP but, impliedly, at PAS. Only the briefest explanation is possible here, drawing mainly from preliminary analysis by Ong Kian Ming.
Method 1: No Parliamentary seats added to PAS-strong States
Method 2: Increasing the number of ethnically mixed seats
Mixed constituencies can be defined in various ways. In particular, mixing Malay-controlled (i.e. Malay-majority or -plurality) constituencies with a significant proportion of non-Malay voters would lower PAS' chances. Ong Kian Ming’s examination led him to this conclusion in his correspondence with me (and I quote): “On the whole there has been an increase in the number of mixed seats.” He also points out that most of the new seats, both parliamentary and state, are relatively mixed, with Malay-controlled constituencies having upwards of 30 percent non-Malay voters.
Method 3: Selective variation in rural weightage: more to UMNO areas and less to PAS areas
Without knowing how constituencies are classified into various rural-to-urban categories, it is difficult to verify this method. This requires comparing constituency sizes or electorates within the same category (say, the most rural category): selective weightage would be established if we find that PAS-controlled constituencies have more voters than UMNO-controlled constituencies within the same category. In the 1994 re-delineation the EC classified constituencies into 5 categories but has not released or revealed its actual classification of constituencies among these categories. For 2003, the EC did away with these categories. However, Ong found enough examples of UMNO-inclined rural constituencies having significantly less voters than equally rural PAS-inclined constituencies to suggest that “in general this is true for Parliament and State seats.”
Method 4: Gerrymandering against PAS
Establishing gerrymandering, or the manipulation of constituency boundaries for partisan advantage, is inherently difficult. However, several scholars have pointed to its possible occurrence in Malaysia since 1974. Ong’s examination of the 2003 re-delineation in Kedah (a sensitive State in the next general election) uncovers enough cases to point to almost systematic gerrymandering of parliamentary constituencies in Kedah, besides cases in other States. This has made it very difficult for several current PAS MPs to retain their seats in Kedah in the next election. Probably more interesting is to check for gerrymandering in state constituencies in Kedah: a null finding (of no gerrymandering) here would promote belief in the fairness of the electoral system.
Two caveats are in order. First, much of what has been said of the 2003 re-delineation is tentative: more careful analysis is needed before any firm conclusions can be made on the use of the three methods of mixed seats, selective or differential rural weightage and gerrymandering in the 2003 re-delineation. Second, the use or abuse of constituency delineation and the effect of the new rules of electoral conduct need to be placed in perspective. Whether singly or in combination, they do not suffice to determine the outcome of the next or any general election. However, small advantages from various sources do add up and their total effect can be significant for political parties concerned.
Finally, it must be said that even appearances of unfairness can erode the credibility of the EC and public belief in the fairness of the electoral system. Unfortunately, the ruling party in Malaysia has shown itself to be quite willing to sacrifice or compromise these important matters for the sake of its own electoral advantage.
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