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This article first appeared in The Edge Malaysia Weekly on July 30, 2018 - August 5, 2018

TO encourage public discussion on long-overdue reforms to Malaysia’s election system, The Edge asks political analyst Dr Wong Chin Huat to explain the issues that require attention. This is the third in a series of articles based on a presentation by Wong, a Fellow of Penang Institute, to the government’s Institutional Reforms Committee.


Part 3

The Edge: What types of malapportionment have taken place in Malaysian elections?

Wong Chin Huat: Malapportionment and seat increase can occur at the interstate and intrastate levels.

The vast difference in electorate size between P109 Kapar (144,159 in the 2013 general election) and P125 Putrajaya (15,791) — then the largest and smallest constituencies — is often used to illustrate the excessive malapportionment in Malaysia. Such a criticism is flawed because it fails to differentiate between interstate and intrastate malapportionment.

Any state or federal territory is entitled to have at least one parliamentary constituency no matter how small its electorate size. This practice is common in many countries. Hence, the federal territories of Putrajaya and Labuan must always be excluded from the assessment of interstate malapportionment so that these outliers do not distort the picture.

Next, we need to remember that Sabah and Sarawak were deliberately over-represented in the initial system design of Malaysia. Together, they make up a quarter of federal seats. Their over-representation cannot be removed without a renegotiation of the federal-state arrangement to compensate them with a comparable or better deal. For example, they could be given a third of seats in an elected and empowered Senate.

Separating the sole constituencies of Putrajaya and Labuan, as well as the 31 seats in Sarawak and 25 in Sabah from the remaining 164, we can ascertain the degree of malapportionment between normal-sized states in Malaya (see table).

Based on the latest numbers, the largest and the smallest among the 164 constituencies yield a ratio of 6:1, which contains both interstate and intrastate malapportionment. When comparing the average electorate size in the Malayan states and Federal Territory of Kuala Lumpur, we can see a vast disparity between Selangor’s 109,776 and Perlis’s 50,074, or a ratio of 2:1 for interstate malapportionment.

Federal seats should be distributed proportionally across states and federal territories so that their average size would be approximately equal.


Doesn’t the Federal Constitution safeguard the fair representation of voters?

The root of the problem lies in the fact that the allocation of federal seats among the states is no longer treated as an electoral issue under Article 116 of the Federal Constitution.

Since 1963, it has been treated as a legislative issue under Article 46, which determines the size of the federal parliament.

In the original Article 116 (3), the principle of proportionality was stipulated, which is that a state’s parliamentary strength must be commensurate with its proportion of the population.

The 1963 amendment was made to deliberately under-represent Singapore and over-represent Sabah and Sarawak. The 1973 amendment then spelled out the number of federal seats for each of the Malayan states in Article 46 (2), which causes the vast 2:1 gap between average electorate sizes across states.

As parliament is not constrained by any mathematical or objective criteria in allocating federal seats to the states and federal territories, interstate apportionment becomes a highly political process. No seats have been taken away from states which have seen their electorate shrinking to be given to states with increased electoral weight.

Instead, seats have been added to every state from time to time, but unevenly. So much so that in 2003, Pahang was given three more seats when the number should have been reduced, while Selangor was only given five seats instead of 10, as warranted by its larger electorate size.


What about intrastate malapportionment?

Recall that intrastate malapportionment was discussed in Part 2 of this series. In a word, intrastate malapportionment is expressly prohibited by subsection 2(c) of the Thirteenth Schedule of the Federal Constitution.

What can go wrong in the delimitation of constituencies?

If some constituencies are left out of a delimitation exercise, malapportionment can result.

Excessive malapportionment is largely caused by the effective exclusion of many constituencies from delimitation exercises. In the 2016/18 exercises, 97 parliamentary constituencies (59%) in the States of Malaya (excluding Putrajaya and Labuan) were left untouched in the final proposal adopted by parliament.

As many as 78 (80% of 97) were excluded from the Election Commission’s (EC) first recommendations, while the remaining ones had their old boundaries retained when newer proposals were rejected.

Altogether, 16 of these excluded constituencies were excessively small and three others were excessively large, deviating from the state averages by more than 33.33%.


What does the Constitution say about delimiting constituencies?

The exclusion of these constituencies is a violation of Article 113(2)(i), which states that after every eight years, the EC shall review the constituency boundaries in compliance with the provisions of the Thirteenth Schedule of the Federal Constitution.

The Thirteenth Schedule states four principles which should be followed when delimitation of constituencies is carried out.

a.     Delimitation of constituencies should not be across state borders and delimitation of state constituencies across federal constituencies should be avoided;

b.     The availability of facilities within constituencies for registration and polling should be considered.

c.     The number of voters in each constituency in a state should be approximately equal, but allowances should be made for the disadvantages faced in rural areas.

d.     Inconveniences caused by altering constituencies should be avoided, and local ties maintained.

The requirement to comply with the Thirteenth Schedule makes it very clear that the EC has no discretion to propose changes to constituency boundaries that are incompatible with the principles stated in the Schedule.


How did the EC interpret the Thirteenth Schedule’s clauses in the last delimitation exercise?

The EC rejected objections against the exclusion of 78 constituencies in its first recommendations, adopting a narrow interpretation of Section 5 of the Thirteenth Schedule.

This section requires the EC to hold a local inquiry in any area that is affected by its recommendations for delimitation.

A major flaw of the delimitation process as provided by the Thirteenth Schedule is that its Section 4, which requires the EC to display its recommendations in the affected constituency, and Section 5, as referred to above, do not compel the EC to make public its reasons for modifying and retaining constituency boundaries.


Were there other ways that the delimitation exercise did not follow the rules of fair play?

Comparable to exclusion from a delimitation exercise is delayed delimitation. The Federal Constitution only provides for a minimum gap of eight years for normal delimitation (as per Article 113(2)) after an amendment in 1984 removed the upper limit of 10 years. The delimitation exercises for the States of Malaya and Sabah took place after 13 years from the end of the last review.

Further, while the EC is compelled to complete a delimitation exercise within two years from its commencement, there is no stated time limit for a finalised delimitation proposal to be debated and adopted in parliament.

Unless a constitutional challenge is filed and won, the prime minister can delay tabling the EC’s final recommendations. The Sabah recommendations were submitted to the prime minister in February 2017 but the prime minister did not table them in parliament in April 2018 together with the recommendations for the States of Malaya.


Next: How gerrymandering works


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