Is every vote of equal strength?

Does every vote, cast at any part of the nation, possess the same effect?

Let’s use the 2018 General Elections (GE-14) as an example.

The Kapar parliamentary constituency [P109] represents one seat in parliament. The Putrajaya constituency [P125] also represents one seat. What is the difference?

Kapar had, in GE-14, 124,983 voters. Putrajaya had 27,314 voters. So, comparing apple-to-apple, for a single parliamentary seat, Kapar had 4.6 times more voters than Putrajaya. One vote in Putrajaya was equivalent to 4.6 votes in Kapar. Two voters in Putrajaya could thus neutralise 9 voters in Kapar.

If we cross compare: Bangi [P102]in Selangor has 178,790 voters, but Igan [P207]in Sarawak, has 19,639. A single vote in Igan is good enough to cancel out 9 votes in Bangi.

Is this ’equality’? Is this a fair way to conduct elections? That is the question.

Equality in the Federal Constitution

Equality is guaranteed in the Malaysian Constitution in these words: ‘All persons are equal before the law and entitled to the equal protection of the law.’ (Article 8(1).

It applies to all situations, including that of elections. In elections, the principle of ‘equality’ has given rise to the long-held principle of ‘one person, one vote’. It means the value of every vote in each constituency must have the same value and strength as any other vote in every other constituency. That is a fundamental right.

To ensure that all votes are of equal strength, every parliamentary constituency should contain roughly the same number of voters.

Equality, Electoral Quota (‘EQ’), and the Reid Commission Report

The method by which constituencies are drawn, according to voter population, is by the use of a formula known as ‘Electoral Quota’. That was recommended by the Reid Commission and accepted by the representatives from Malaya — so much so that they adopted it into the constitution to safeguard it.

In 1957, the Reid Commission recommended the concept of equality.  They formulated the equitable distribution of constituencies between each state, ‘on the basis of population and the electorate’. Once a certain number of voters were assigned to a constituency, the Commission proposed that ‘disparities among constituents’ must be limited ‘to no more than 15% deviation from the average constituent in each state’.

These principles were embedded into the Federal Constitution by three clauses in Article 116.

Article 116(5) defined what Electoral Quota was.  The formula was: the total number of registered voters divided by the total number seats available in parliament. Art 116(5) read:

‘116(5)(a).    ‘Electoral quota‘ means the number obtained by dividing the number of electors in the Federation or State by the total number of constituencies or, as the case may be, the number of constituencies in that State’.

Articles 116(3) and (4) were in these words: –

Article 116.(3) –

‘Constituencies shall be allocated to the several States in such manner that the electoral quota of each State is as nearly equal to the electoral quota of the Federation as it can be without causing undue disparitybetween the population quota of that State and the population quota of the Federation’.

Article 116.(4) –

‘Each State shall be divided into constituencies in such manner that each constituency contains a number of electors as nearly equal to the electoral quota of the State as may be after making due allowance for the distribution of the different communities and for differences in density of population and the means of communication: but the allowance so made shall not increase or reduce the number of electors in any constituency to a number differing from the electoral quota by more than fifteen per cent’.

When the UK monarch and the Malay Rulers consented to the Reid Commission Report, the UK Parliament drafted the new Federal Constitution on June 1957. The draft was presented, debated and enactedby the Federal Legislative Councilon August 15, 1957.   We can assume that the Reid Commission Report forms the womb of the Federal Constitution.

The duly enacted Federal Constitution took effect on August 27.

Independence of EC

The Reid Commission stipulated that elections should be conducted by a body known as the Election Commission(‘EC’).  They explained the work of the EC: ‘Before any elections can be held for the House of Representatives it will be necessary to delimit constituencies and to prepare electoral rolls for each constituency. We recommend that an independent Commission should have the duty and responsibility of carrying out these matters and of organising and conducting elections and that this Commission should be called the Election Commission and should consist of three members.’

The Commission said that the EC must be entirely free of Government influence and was to be appointed — and removed — by the King.  They thought it crucial that the EC ought to be wholly independent: ‘We regard it as a matter of great importance that this Commission should be completely independent and impartial. We therefore recommend that the Election Commission should be a permanent body, that its members should be appointed by the Yang di-Pertuan Besar and should be persons whom all democratic parties and all communities have complete confidence. The independent position of its members should be recognised by providing that they can only be removed from office, in the manner provided with regard to a Judge of the [Federal] Court, and that their salaries cannot be diminished during their term of office but shall be a charge on the Consolidated Fund’. [para 71].

Such an EC would be entirely independent, and self-sustaining; it could not be oppressed by the Government.

And since there rights were anchored within the Constitution, it was thought the concept of equality as safe.  It was not.  So I ask you: do you have, as the Commission report says: ‘complete confidence’ in the EC? Good for you! 

The Removal of equality of votes in 1962, and EC’s emasculation

The Dark Ages intervened some years after the formal adoption of the Federal Constitution.

In 1962, the Alliance party [a forerunner of the previous regime], possessing a two-thirds majority, extensively amended the Constitution. It callously removed the equality of votes Clauses 3, 4, 5 in Art. 116 and other related clauses.

These removals were designed, as it was then said, ‘to give the government a free hand.’  To give a free-hand to do what?

To gerrymander, is the melancholy answer.

These far-reaching amendments ensured that number of voters in rural constituencies were structured to have as few as 50% of the number of voters in urban constituencies.

Importantly, ‘the final say’ on constituency delineation was wrenched from the EC. Its independence was eviscerated.  From its once independent hands delineation powers were thrust to an impatient gleeful parliament, which could make serious and prejudicial decisions on how to fiddle with elections, based only on a simple majority in parliament.

The very heart of parliamentary democracy was cheerfully breached, and with impunity. This is the clearest example of the distinction between Rule ‘of’ Law, and Rule ‘by’ Law.  Not all laws are just.  In some [read, election laws] the spirit of justice animating the law would have fled, leaving nothing but a rotting carcass. So also here.

Thus enfeebled, the EC was forced to submit proposals on any ‘deviations’ to the Prime Minister. The PM would then present these to parliament, ‘with or without modification’: that was an open licence to gerrymander.

If the PM modified the EC’s proposals, the EC could do nothing.  And so the EC became the ruling party’s handmaiden.

Such recommendations as the PM made, would, of course be approved by a simple parliamentary majority.

All entrenched constitutional protections were lost in an instant.   A pall of darkness hung over the nation for sixty unrelenting years.

It came to a head not three months ago. On 28 March 2018, parliament passed major motions to support serious gerrymandering activities. The EC did not even give enough time for public consultation.  The motion was bulldozed through parliament— in two hours flat. Each side was allowed to speak, on a matter that formed the heart of democracy, a total of one hour. The Speaker swept aside all protest. Only 5 MPs from each side were allowed to speak for up to ten minutes each. Only 11 MPs out of 222 MPs spoke on a matter that was of national interest and on equality. It is in the Hansard.

Azmin Ali MP (Gombak) spoke for Selangor.  He complained that the total number of voters in Selangor were 2,418,611, divided into 56 DUN seats. The state EQ was 43,190.  However 33 or 59% of the DUN seats had been inflated to more than 43,190 voters per seat. That was unjust. Lim Guan Eng MP (Bagan), spoke of Pulau Pinang. He demonstrated reverse gerrymandering.  In the DUN seat of Air Putih there had been almost 15,000 voters, but it had now been reduced to 12,752. He contrasted that with DUN seat next to it, Paya Terubong. That had 41, 707 voters, at least 350% larger than Air Putih.  It meant one voter in Air Putih could knock off 3.5 voters in Paya Terubong.  His complaint was they were packing all the pro-opposition voters into in one super-constituency. Dr Ong Kian Meng MP (Serdang) complained that in the Lumut parliamentary seat, a racially homogenous constituency was altered in such a way that it now had 71% of a particular race.

All in all, opposition seats were impossibly packed with more voters, and pro-BN seats were shrunk so that it was easier for BN to win.  Think not that this is a recent or an isolated incident. It has been going on for decades.

And EC has been sitting by, shackled and silent in its cage.

All this was done just over one month before GE-14.  If that is not patent gerrymandering, what is?

And what happened then? We all watched it on television.  On 09 May 2018, when confronted by clamouring victors who asked for a public announcement, EC officials, in refusing to sign Form 14 under the Election Act, said ‘Kami tunggu arahan’ [we await instructions].

DEVIATION FROM THE EQ IN GE-14 – FUN WITH NUMBERS!

Let us see some examples how these 1962 amendments were abused.

Basics first.  There are 222 parliamentary seats. In GE 14, there were 14,968,304 registered voters. So, to obtain Malaysia’s parliamentary EQ, one ought to divide 14,968,304 by 222. That works out to 67,424voters per parliamentary constituency. We shall round that off to 67,500.

This — according to Art 116(5) — is the ideal number of voters for each constituency: 67,500.

So, each constituency should have no more or less than 67,500 voters, with a 15% margin as allowed by the now repealed Article 116(4). A ‘downward adjustment’ of 15% leaves a constituency with no less than 57,353 voters. An ‘upward adjustment’ of 15% results in 77,625 voters.

Therefore, no constituency in GE-14 should have had fewer than 57,353 voters or more than 77,625 voters, to guarantee the very foundation of democracy, and the principle, ‘one person, one vote.’

However, that is not what happened.

Let us apply this EQ principle to our earlier example of Kapar (P109). Kapar has 124,983 voters. If one divides the Kapar’s number of voters with the national EQ, one gets: (124,983)/(67,500) = 1.85.

This is almost two times more than the EQ. So, there is no equality.

Now contrast that with Putrajaya (P125). It has 27,314 voters. How much smaller is Putrajaya from the national EQ? Easy. You divide the Putrajaya voter strength with the EQ of (67,500).  You get: (67,500)/ (27,314) = 2.44.  So, Putrajaya is 2.44 smaller than the EQ.  Or 60% smaller than the national EQ.

You will recall that the original Article 116(4) allowed a 15% adjustment only if certain problems existed.  These were: (1) problems relating to ‘distribution of different communities’; (2) problems relating to ‘differences in population density’ or (3) problems relating to ‘difficulties of communication’.

What ‘difficulty’ does Putrajaya face in terms of ‘distribution’ of its communities, ‘density of population’ or ‘difficulties of communication’? None whatsoever.  So why is it so small? No answer.

Look at East Malaysia.  It served as vote bank BN.  Sabah has 1,119,009  voters. Sarawak has 1,219,882.  East Malaysia has 2,338,891 voters.  That represents 15.6% of the nation’s voting population. But together, East Malaysians have 56 parliamentary seats.  Out of 222 seats, that translates into 25.22% of parliament.  Why are East Malaysians controlling 25.22% of parliament?

Who decided upon these extra 10% ratio?  Upon what basis?  No rational answer.

It gets worse.

In GE-14, there were 84 constituencies with less than 50,000 voters. Some examples are: Igan (Sarawak) with 19,639 voters, Lawas (Sarawak) with 18,883 voters and Lenggong (Perak) with 29,752 voters. Can you guess who won in these constituencies?

There were also 52 constituencies with voter-numbers larger than 67,500. Some examples are: Bangi (Selangor) with 178,790 voters and Petaling Jaya (Selangor) with 140,920 voters.

Predictably, the constituencies where voter-numbers vastly exceed the EQ (and where each vote is worth less) are concentrated in areas held by the former opposition parties.

Suppose you arranged all 222 constituencies into a table, from the smallest number of voters to the largest [from P207, Igan, Sarawak with 19,639 voters to largest P102, Bangi with 178,790 voters],and a line is drawn cutting off the table at the 112^thseat (a simple majority of 111 plus one extra seat), something odd happens.

The total number of voters in these 112 constituencies from these smallest 112 seats totaled 4,892,604 voters. Divide 4,892,604 by all the voters in Malaysia (14,968,304), and you arrive at 32.7%.

This means that if BN had won in these 112 seats, effectively, it would have taken control of the country. Indeed, you bore witness to these goings on these last 60 years.

You would think that in a democratically structured electoral system, BN would have needed to obtain the support of at least 50% + 1 of the total voters (say around 7.4 million voters).  Yet, in reality, it only had to convince 4.9 million voters (33%) to vote for it.  It couldn’t care two hoots about what happened to the rest of the 9.9 million voters.

But wait:  this analysis is based on there being 100% voter turnout.

In reality, less than 84% turn up to vote.  84% of 14.97 million is 12.57 million.  Of that, BN only had to convince (as it always has)— some 33% or 4.14 million voters— to support it.  This means the previous regime could ignore more than 10 million voters.  This is not a theory.  Two researchers, Lim Hong Hai and Ng Chak Ngoonand a body called Tindak Malaysia predicted (for GE-13 I believe) that all the previous regime needed was 14% of the total voting population (2.1 million votes only at that time) to win.

Some 120,000 voters in one constituency could vote against the previous regime. It wouldn’t matter. It would design another constituency with only 20% of the number (24,000 voters) that they knew favoured them, and in this way, could neutralise 120,000 voters.

This kind of disenfranchisement – the act of taking away the right to vote in public election – is a direct act of dictatorship.

The way forward

We need to solve the problem. All is not lost. It is easily done.

First, one needs to be rid of all the ‘amphibian’ MPs. For a constitutional vote like this, an agreement could be reached with the smaller opposition parties. A two-third majority of 148 MPs would be required for this exercise, plus a few more, to be safe from last minute slimy toads who might do a hopping Houdini.

Then constitutional amendments should be effected to bring back equality: ‘one person, one vote’. Every constituency must be re-delineated to comply with the EQ. All those equality provisions the Reid Commission brought into the Constitution, which were removed in 1962, ought to be reinserted. These are Articles 116(3) to 116(5).

The Constitution allows delineations once in 8 years. So, some may argue that Art. 133(3)(ii) prevents any further delineation from occurring until a further 8 years had passed from the last delineation exercise in March of 2018. The answer is, these delineations can be declared unconstitutional.  You yourself could refer a constitutional question to the Federal Court and ask it to rule on how to overcome these horrid gerrymandering exercises, and how to side-step this 8-year rule.  Or indeed, His majesty the King may, on his own, exercise his powers under Art. 130 and ask the Federal Court the same question.  Third, any new amendment to the Constitution can remove this 8-year bar. Simple as that.

Will their Majesties the Conference of Rulers, and will the Harapan Government deign to hear the voices of the oppressed masses, ‘de-gerrymander’ our constituencies, render us equality, and aid us become the best nation in the world?  

[The writer acknowledges the contributions of ‘Tindak Malaysia’s ‘Delimitation Proposal’; and the research of Lim Hong Hai and Ng Chak Ngoon.* Much of the ideas I have relied on come from these sources.