Boundary changes deeply flawed, unfair, unconstitutional, says Bar

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The Malaysian Bar is deeply disturbed by the overall manner in which the constituency boundary changes exercise was conducted by the Electoral Commission, leading up to and including the indecent haste in which its boundary changes proposals were tabled and passed by Parliament on 28 March 2018.

The boundary changes exercise was dogged by procedural issues from the very beginning, starting from the exercise for the state of Sarawak, the proposals for which were presented for public review in January 2015. In the High Court case of See Chee How & Anor v Pengerusi Suruhanjaya Pilihan Raya Malaysia, the High Court of Sabah and Sarawak in Kuching ruled that the preliminary information provided in the Electoral Commission’s public notice was insufficient, although this finding was reversed by the Court of Appeal. The Federal Court in turn refused to grant leave to appeal, on the grounds that the proposals had, by then, already been submitted to the prime minister.

The same concerns spilled over once the boundary changes exercise was commenced for Peninsular Malaysia, with questions raised about the adequacy of the preliminary information, the rejection of some of the objections on procedural grounds, the rush of the first round of the local inquiry, the refusal to allow objectors to fully ventilate their objections, the denial of the right for legal counsel to be present, and the refusal to hear some objectors during the second round of the local inquiry.

The Malaysian Bar is also appalled by some of the judicial pronouncements taken in the various legal challenges made in the course of this boundary changes process. The courts appear to have denied litigants access to a legal remedy and, in so doing, failed to protect and uphold the Federal Constitution. In particular, the decision of the Federal Court on 19 February 2018 — involving applications brought by two opposition members of Parliament from Perak and seven voters from Melaka — where it was held that the proposals of the Electoral Commission could not be judicially reviewed, because they were actions of the Electoral Commission that did not bind parties, was astounding.

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The combined effect of this decision and that in See Chee How is that the Electoral Commission’s proposals can never be tested against the principles of the thirteenth schedule to the Federal Constitution. This is a wholly untenable position. As William Blackstone wrote in his Commentaries: “It is a settled and invariable principle… that every right when with-held must have a remedy, and every injury its proper redress.”

When it comes to parliamentary procedure, the Malaysian Bar fully supports the fact that the doctrine of separation of powers is a feature of the Federal Constitution, as most recently reaffirmed by the Federal Court in the cases of Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat and Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak.

Applying the principle to this situation, Parliament is the master of its own affairs. However, if there is to be a real respect for the doctrine of separation of powers, and not mere tokenism, then the legislative branch of government must not only be independent, but must be seen to be independent. It should not bow or tie itself to the executive branch and must oppose any attempt by the executive branch to rush through legislation to meet the latter’s own political agenda and timetable. The speaker of the Dewan Rakyat should not act in a manner that gives rise to the irresistible impression that Parliament was but a mere rubber stamp for the exigencies of the executive branch.

Further, even though Parliament is the master of its own affairs, the speaker must exercise his discretion in a fair and non-arbitrary manner. His ruling earlier in the year that a debate on the matter of 1MDB could not proceed — on the grounds it was the subject of court proceedings in the United States of America and therefore “sub judice” — is hard to reconcile with his recent ruling that debating the Election Commission’s boundary changes proposals — although the subject of court proceedings in Malaysia — was not “sub judice” and could therefore proceed. This inconsistency is an abuse of the rule of law.

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After 60 years of independence, it is incredible that the variation between the smallest and largest seat (by voter size) in Parliament has actually increased over time, rather than decreased. In the 2018 boundary changes exercise, the largest constituency will be the renamed Damansara seat in Selangor, with 150,439 voters, which is 8.53 times larger than the smallest constituency, the Federal Territory of Putrajaya, with 17,627 voters.

Even comparing within states, the variations remain huge. In Selangor, the difference between Damansara and the constituency of Sabak Bernam with 37,126 voters, is 4.05 times, the highest in any single state in Peninsular Malaysia. For this to be occurring in Selangor, arguably the most developed state in Peninsular Malaysia, is incredible.

Section 2 of the thirteenth schedule to the Federal Constitution states this as one of the principles that “shall as far as possible be taken into account in dividing any unit of review into constituencies pursuant to the provisions of Articles 116 and 117”:

(c) the number of electors within each constituency in a State ought to be approximately equal except that, having regard to the greater difficulty of reaching electors in the country districts and the other disadvantages facing rural constituencies, a measure of weightage for area ought to be given to such constituencies;

The order relating to the 2018 boundary changes exercise was passed by the Dewan Rakyat on 28 March 2018, and then submitted to and made by the Yang Di-Pertuan Agong, published in the Federal Government Gazette, and brought into force in the short space of 24 hours. The proposals are being implemented for the imminent general election.

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By disrespecting and totally disregarding the principle of “one person, one vote, one value”, the proposals are fundamentally flawed. The inherent unfairness and unconstitutionality of the boundary changes exercise and its results may well cast a long and deep shadow over the legitimacy of the outcome of the coming general election and future general elections.

George Varughese is president of the Malaysian Bar.

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