However, the march of times requires many adjustments of, and reforms to the Malaysian electoral system so that elections are perceived as fair as well as free.

However, the march of times requires many adjustments of, and reforms to the Malaysian electoral system so that elections are perceived as fair as well as free.


Wednesday February 23, 2011

Electoral Principles and Paradoxes

REFLECTING ON THE LAW

By SHAD SALEEM FARUQI

In Malaysia, 70% of the population does not participate in national elections; 52% is ineligible to participate and 13% is not registered as voters, while 10% of registered voters do not cast their vote.

A FEW by-elections are around the corner. There is also talk of an early general election.

It is therefore opportune to examine the principles and paradoxes of our 56-year-old electoral system.

Early dissolution: Under Article 55(3) of the Constitution, the Dewan Rakyat has a five-year tenure. The electoral mandate of Prime Minister Datuk Seri Najib Tun Razak does not expire till 2013.

With nearly 65% of the seats in the Dewan Rakyat, there is no legal or political reason for him to return to the people prematurely for a fresh mandate.

Further, the decision to dissolve the Dewan Rakyat prematurely does not rest with the Prime Minister alone.

The premier can advise the Yang di-Pertuan Agong who under Article 40(2)(b) may, in his discretion and wisdom, refuse the Prime Minister’s counsel on this matter. Conven¬tionally, of course, the King almost always accepts the Prime Minister’s request.

Electoral system: We have a simple plurality, first past the post or winner-take-all system which we emulated from the UK.

The candidate with the largest vote wins the electoral district. This is so, even if in a three or four-cornered contest he does not obtain more than 50% of the votes polled.

In the UK, in nearly one-half, and in Malaysia, in nearly one-third, of the constituencies, the simple plurality system grants victory to candidates who do not secure absolute majorities. Their legal victory cannot hide their problem of legitimacy.

No proportionality: At the national level, this simple plurality system leads to a startling lack of proportionality between votes polled and seats won.

In the UK in the 70s, the victorious Labour Party won a meagre 37% of the popular vote but 52% of the parliamentary seats!

In Malaysia, in 2004, Barisan Nasional won 63.9% of the popular vote but 90.4% of the Dewan Rakyat seats. In 2008, the BN captured a bare 50.6% of the overall votes but a comfortable 63.06% of the parliamentary seats.

The proportional representation system is more democratic. It requires constituencies to be territorially large and to have 10 to 15 seats.

Each voter has only one vote and seats are awarded to political parties in proportion to their actual proportion of votes.

The great weakness of the proportional representation system is that it prevents any one party from securing an absolute majority in the legislature. This results in a weak government and difficulty in legislating laws.

In most democracies, therefore, justice gives way to expediency.

Eligibility to vote: In Malaysia, under Article 119 of the Federal Constitution, a voter must satisfy the following qualifications:

> he must be a citizen;

> he must be 21 years of age on the “qualifying date” (the date on which he applied for registration as an elector in a constituency);

> he must be registered on the electoral roll as a voter;

> on the qualifying date, he must be a “resident” in the constituency where he seeks to register, or if not a resident, he must register as an “absent voter” under the Election (Postal Voting) Regulations 2003; and

> he must not be disqualified under Article 119(3) or any other law.

Need for reform: Some aspects of the Malaysian law relating to voting lead to unjust results. First, is the very high voting age.

A survey of 230 political systems reveals that the right to vote comes alive at 16 years of age in six countries; at 17 in five nations; at 18 in 195 societies, at 19 in one country; at 20 in seven political systems; at 21 in 12 countries (including Malaysia) and at 25 in one country. In the Vatican only those cardinals who are less than 80 may vote.

In Bolivia, married people vote at 18, unmarried at 21. In Indonesia, married people have the franchise at any age. In Slovenia, the age of voting is 18 but is lowered to 16 for those employed.

In Malaysia, 52% of the population is below 21 and ineligible to participate in elections. It does not appeal to reason that in a country with nearly 90% literacy, and a statutory age of capacity at 18, the right to vote must be withheld till age 21.

A second significant factor is there is no automatic right to vote by virtue of one’s citizenship.

There is a formal requirement of prior registration on the electoral roll.

Several million people equaling 13% of the population do not register. Those that do get to vote only when election arrives, by which time they may be well past 21.

Registration is necessary to prevent a massive influx of outside voters in hotly-contested constituencies. But its undesirable result is that those who fail to beat the deadline to register get disenfranchised.

A possible solution is that every citizen of age according to National Registration Department records must be automatically registered at his MyKad address.

If he wishes to change his residence and his voting constituency, as is his right, the burden should be on him to fill the necessary forms.

A third factor is that voting is not mandatory. Nearly 10% of eligible citizens do not bother to cast their vote.

The combined effect of high voting age, the mandatory registration requirement and the non-compulsory nature of voting is that nearly 70% of the population does not participate in national elections.

This is far too high. It affects perceptions of legitimacy.

Election campaign: The rules relating to media coverage of political contestants are clearly weighted in favour of those who own or control the media.

There is a need for giving equal access to all political parties, to permit and facilitate public debate and to give voters a genuine choice between competing candidates.

Police control over processions and assemblies needs to take note of rising sentiment for greater political space.

It must be remembered that underdogs are often anointed by a halo of sympathy because of the popular perception of unfair treatment.

Election expenses: Putting limits on the expenses of candidates between nomination date and election date does not prevent the hopefuls from splurging money in the period before nomination.

Putting caps on individual expenses without restricting party expenses does little to prevent electoral battles from degenerating into struggles between cheque books.

We need rules to require all political parties to disclose their sources of revenue and to make annual returns which should be accessible to the public.

Public corporations, statutory bodies and quangos should be banned from making political donations either directly or indirectly.

Malaysia has cause to be proud that it has successfully conducted 12 general elections since independence.

However, the march of times requires many adjustments of, and reforms to, the electoral system so that elections are perceived as fair as well as free.

> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM