The Coalition for Clean and Fair Elections 2.0 (Bersih 2.0) calls upon all democracy-loving Malaysians to strive to change the country’s electoral system after the Selangor state government lost its bid to challenge the delineation proposal by the Electoral Commission in the Kuala Lumpur High Court.
Selangor should implement non-constituency seats
In particular, Bersih 2.0 calls upon the Selangor state government to implement non-constituency seats before the coming general election.
Such seats were proposed by the National Conference on Gender and Electoral Reform (NCGER) organised by Selangor women empowerment agency Institut Wanita Berdaya last month as a means to introduce a gender quota. The proposal wants all parties to nominate 50% women in their non-constituency seats candidate lists.
Non-constituency seats will be allocated to all parties based on their vote share. Functioning like the party list-proportional representation component in the mixed-member majoritarian system in countries like Japan, Korea and Taiwan, this will mitigate the negative impact of malapportionment and gerrymandering, which is what the Selangor suit is all about.
Non-constituency seats can also make politics more inclusive, stable in two other ways
First, parties that lose out in multi-cornered contests can still gain some representation.
Second, non-constituency seats are allocated to parties not individual candidates; hence, it would make it harder to bring down a government through the defections of lawmakers.
Bersih warns that if nothing is done about the electoral system, the resumed constituency delineation exercise will likely result in not only the distortion, but even the denial of the Selangor electorate if the coming general election is held using the new constituency boundaries.
Judiciary frees Electoral Commission from constitutional constraints
Bersih 2.0 praises Judge Azizul Azmi Adnan for his rigour, attentiveness and steadfastness in hearing the case, which allowed the shocking frauds and flaws committed by the Electotoral Commission in the delineation exercise, the alteration of polling districts and the upkeep of electoral rolls to be examined and exposed.
The Selangor suit gave hope that the commission is not above the Constitution but instead must abide by the constitutional provisions of Articles 113-117 and the 13th Schedule in conducting a delineation exercise.
Unfortunately, in delineation suits in other cases, the pursuit of justice has been rejected at the Court of Appeal stage if not at the High Court stage. These judges claimed that the Electoral Commission’s delineation proposals are not decisions and therefore not subject to judicial review.
Such a position directly and blatantly contradicts the Federal Court’s judgment in the 2015 Sarawak delineation suit filed by See Chee How and Paul Raja that once the commission submits its proposal to the prime minister, it would be “academic” for the Court to intervene.
The contradicting positions by the Federal Court and the Court of Appeal and certain High Court judges in the span of two years are effectively saying this: to demand constitutional compliance of the Electoral Commission in delineation exercises, stakeholders — state governments, local councils and affected voters — will either act ‘prematurely’ if the commission has not submitted its final proposal to the prime minister or act too late on an ‘academic’ matter if the commission has done so.
This pair of contradicting positions are effectively saying that the commission can act in disregard and violation of Articles 113-117 and the 13th Schedule of the Federal Constitution in delineating constituencies, beyond query, check and balance by the judiciary. And if Parliament chooses to not reject the commission’s proposal, then nothing proposed by the commission in constituency delineation can be considered unconstitutional and held back.
Unfortunately, this contradicting yet comprehensively abdicating position of the judiciary binds Judge Azizul because senior judges in the Court of Appeal have taken the ‘premature’ position, deliberately before the Selangor case’s decision. In the Johor Bahru case, the Court of Appeal judges insisted on delivering their ‘premature’ verdict even though the applicants withdrew their case and the senior federal counsel representing the commission had initially agreed to the withdrawal.
This tragic episode in Malaysia’s constitutional history is a wake-up call to all that Malaysia’s captured electoral system cannot be fixed before the independence and integrity of both the Electoral Commission and the judiciary can be restored.
Change FPTP to fight gerrymandering and malapportionment
Malaysians believing in democracy must now demand a shift from the pure first-past-the-post system we have. The country will slip into greater instability if elections keep producing minority government in term of votes, as in the last poll, where the ruling coalition won 60% of the parliamentary seats with only 47% of the votes.
With the Electoral Commission freed from constitutional constraints by the court, malapportionment and gerrymandering can only worsen. The Constitution allows a new round of delineation exercises, every time seats are added to Parliament and the state Assemblies. Seat increases will inevitably be exploited by any government with a two-thirds majority if their power is threatened.
Bersih 2.0 holds that malapportionment and gerrymandering can be best stopped when the seats won by parties are determined by how many votes they get, not where they get the votes. This is the case under a pure party list-proportional representation system as in Indonesia and South Africa or a mixed-member proportional system in Germany and New Zealand.
Under the latter system, voters have two ballots: one for constituency, one for party. Lawmakers too consist of two types: constituency representatives and party list representatives.
Shares of party ballots will decide the total number of seats parties are entitled to. For example, a party winning 40% of party ballots should have about 40 seats in a 100-seat Parliament. If the party has won 25 constituency seats, it will be given 15 party list seats. if this party is defeated in all constituencies due to gerrymandering, it will simply get 40 party list seats. This makes gerrymandering and malapportionment simply pointless.
Bersih 2.0 urges all pro-democracy parties to seriously study the desirability and feasibility of a switch from the first-past-the-post system to a mixed-member proportional system after the coming general election.
Meanwhile, it is constitutionally possible for the states especially Selangor, Penang and Kelantan to introduce non-constituency seats as an interim measure. This would give us an electoral system that resembles the mixed-member majoritarion systems in countries like Japan, Korea and Taiwan, which is a diluted variant of the mixed-member proportional system, but nevertheless much fairer and more inclusive than the first-past-the-post system.
Bersih 2.0 steering committee