Malaysia Electoral Reform: Things Must Considered and Watch

The victory of the Pakatan Harapan coalition in the 2018 Malaysian General Elections brought new hope for electoral reform in this British Commonwealth country. Electoral reform has long been urged by the Malaysian Coalition for Clean and Fair Elections, commonly known as Bersih (Smeltzer & Paré 2015: 120). On April 28^th 2012, Bersih, consisting of 184 non-governmental organizations (The Straits Time, August 27^th 2015) successfully mobilized tens of thousands of people to the streets to jointly call for comprehensive electoral reform (Smeltzer & Paré 2015: 120). For true, as recognized by one of Malaysia’s ex election organizer, Tan Sri Abdul Rashid Abdul Rahman, who is currently the Chair of the Election Reform Committee (ERC) formed by Prime Minister Mahathir Mohammad, Malaysia has had an unfair and undemocratic electoral system for more than six decades since the first election was held in 1955 (New Straits Time, October 9^th 2019).

In an article written by Ahmad Fairuz Othman, New Straits Time contributor, Abdul Rashid explained that the Malaysian electoral system is a legacy of the British colonial government. Under this electoral system, Malaysian voters can cast their vote voluntarily to the polling station (TPS), but the electoral process such as the mechanism of candidacy by political parties, campaign funding, the authority of the interim implementing government, and media freedom are not regulated in electoral law. The absence of such regulation making Malaysian elections cannot be considered as democratic elections.

“To be honest, our election law is very bad. However, despite the bad law inherited by the UK, the election organizers have managed the election quite well by ensuring the people’s right to vote is fulfilled. But indeed, when you talk about justice among candidates, I must say our elections were unfair, “Abdul Rashid saying in New Straits Time, October 9^th 2019.

Poor Malaysian election system is also caused by the delineation of constituencies that are not in accordance with the principles of constituency delineation. So far, in practice, the delineation of constituency oftenly violates the provision stated by the constitution. Election expert from the University of Western Australia, Benjamin Reilly, assess the delineation of constituencies in Malaysia as a form of power collusion with the election organizers to maintain the status quo (Reilly, 3 December 2019).

Today, under the Pakatan Harapan coalition government, the ERC is formed to draw up a revision of the Malaysian electoral system for two years. ERC is a body consisting of academicians, lawyers, election activists and politicians. Since 2018, ERC has gathered public opinion from eleven locations. ERC is involving the United Nations on Development Program (UNDP) for the Electoral Reform Assistance Project (New Straits Time, 9 October 2019).

ERC itself has the ambition to compile an election omnibus law. Because, even there is a revision of the electoral law, this law will be incompatible with other laws governing the administration of elections. On November 30^th and December 1^st, Electoral Reform Roundtable was held with participants consisting of ERC, politicians, civil society, Bersih 2.0, Kofi Annan Foundation, Global Clean, Malaysian Anti-Corruption Commission, International Fellowship of Evangelical Students (IFES) and International Institute for Democracy and Electoral Assistance (IDEA). Various issues were discussed, including the independence of the EMB, the design of the electoral system, the formation of electoral districts, voter registration and voter list management, and political finance (International IDEA report, December 3^rd 2018).

In this article, only three reform topics will be discussed, namely the independence of EMB, the electoral system, and the constituencies delineation.

Assuring EMB independence

Suruhanjaya Pilihan Raya (SPR), the Malaysian EMB, is a permanent institution established in 1957 (Reilly 2019). Its existence is mentioned in Article 114 of the Malaysian Constitution. SPR members are chosen by Agong or King, on the advice of the prime minister. SPR members can serve until they reach the age of 65 (Malaysiakini.com journalist information, Zikri Kamarulzaman, October 31^st 2019, to rumahpemilu.org).

The number of SPR members changes from time to time. Initially, the SPR consisted of three, one chairman and two members. Thus, in 1963, the number of SPR members was added one person to represent the states of Sabah and Sarawak. In 1981, the position of deputy chairman was held so  the composition of the SPR until today has become seven (Reilly, 3 December 2019).

In the design of the Malaysian electoral management body, the SPR is responsible for recommending constituencies delineation⸻which are then approved by the parliament⸻, organize elections, and listening to complaints from candidates and voters regarding the electoral process. In the latter authority mentioned, in practice, many cases in constituencies delineation are run by the legislative body and the prime minister (Reilly, December 3^rd 2019).

The SPR, which is actually an independent institution, is often accused of being partisan by the community. One reason is because of SPR delineate constituencies does not follow the mandate of the constitution. One alternative Malaysian media, Newnaratif.com, highlighted the abuse of the SPR’s authority which was considered to have contributed to the denial of the principle of “one vote one value” in the Malaysian elections. The constituencies delineation by the SPR caused injustice in obtaining seats for political parties participating in the election.

Reilly in his paper entitled “Malaysian Electoral Reform: Three Proposals A Report for the Southeast Asia Rules-Based Order Project” (2019) states that EMB must be able to act autonomously without direct control by the government or the parliament. Ideally, election organizers are not appointed by the executive and legislative branches, do not have affiliation with any political party, and work transparently and accountably.

The deviation phenomenon of the constituencies delineation by the SPR, according to Reilly, caused by two things. First, the member of SPR is appointed based on the prime minister’s advice who is a politician from the winning political party. Second, the constituencies is not delineate in a transparent and accountable scheme, it is also influenced by legislative institutions that have an interest in extending power.

“There are many examples where the perceived influence of a political party on an election machine has greatly reduced the validity of election results. Once again, Malaysia is one of them. … For example, the ACE Project section of the Election Knowledge Network in Malaysia states clearly that “The Election Commission is seen as one of the main instruments in which the BN (Barisan Nasional) has manipulated the electoral process for its own political advantage,” Reilly wrote.

In reforming electoral management body, there are six things that need to be done according to International IDEA. First, there is a legal basis that guarantees that the election organizers can act independently. Second, election organizers has the authority to make regulations based on election principles. Third, the recruitment of election organizers must gives everyone access and the winner is based on a merit system. Fourth, there is a prohibition that prevents conflicts of interest in the work of organizing elections. Five, there is a system that makes election administrators work transparently and accountably. Six, the legal framework establishes the procedure for procuring goods and services. Seven, finance is managed by the election organizer accountably. Eight, the availability of a mechanism to review decisions or regulations made by the election organizer, which prioritizes the restoration of citizens’ rights (International IDEA, 2014: 102-107).

In fact, there are no specific management design standards: what is the ideal number of EMB members, and how long is the EMB term of office. In the Southeast Asia region, there is only one country where the EMB member can remain in office until the age of 65, namely Malaysia. And, in term of numbers, countries with election organizers only serve during election, the number of election organizers is greater than countries with election organizers holding office for a certain period. The following table design of EMB in the Southeast Asian region.

Table of the EMB Design

Country	The number of EMB member	Period	EMB members are chosen by	The chair of EMB are chosen by	EMB member’s background
Myanmar	5	5 years	President	President	Professional
Cambodia	9	Selama pemilu	Executive and legislative members	Executive and legislative members	Professional
Indonesia	7	5 years	Selection team, President, and national parliament members	EMB members	Professional
Lao	17	During election	National parliament members	No data	Professional
Malaysia	7	Sampai usia 65 years old	Monarch in consultations of the Conference of Rulers	Monarch in consultation of the Conference of Rulers	Professional
Philippines	7	7 years	President, with the knowledge of the Appointment Commission	President, with the knowledge of the Appointment Commission	Professional
Thailand	7	7 years	Nominated by the Senate based on submissions of the Selection Committee and the Supreme Court, then appointed by the King.	EMB members	Professional
Timor Leste	7	5 years	President, parliament members, and judiciary members.	Parliament members	Professional
Vietnam	15	During election	Parliament members	Parliament members	Professional

Source: International IDEA’s data

Reilly said that EMB status, whether permanent or only during election, is can be set based on the objectives want to achieve. If the EMB is permanent, the high costs must be commensurate with the management of electoral administration. The oldest electoral commission in the world, India, its permanent showing the results of election organizers who have the capacity and expertise in electoral administration.

From the perspective of civil society in Indonesia, which has electoral reform experience in 1998, ensuring the independence of EMB can be done in two ways, namely establishing a check and balance mechanism in the recruitment process of EMB members, and the establishment of an EMB code of ethics to regulate working procedures. The ethics council can be formed ad hoc, and adjusted with the legal culture in Malaysia.

“Recruitment should not give any space for monopoly by one party, but rather provide a balance mechanism for control. But, don’t let this control mechanism causes mutual hostages. In the United States, the Senate is only to confirm the names given by the president. In Indonesia, the DPR (House of Representatives) conducts a fit and proper test then decides the names given by the president based on the results of the recruitment team, “said Executive Director of the Association for Elections and Democracy (Perludem), Titi Anggraini when rumahpemilu.org asked for information at the office Perludem, Tebet, South Jakarta (7/1).

Regarding the current Malaysian EMB design, Titi, who is also an International IDEA Democracy Ambassador, comment that it worth for changed. A long period of EMB members does make the change agenda easier to achieve and guarantee the continuity, but it can cause the status quo. Also, inappropriate figures as the organizer of the election can also make it difficult to make changes in a more democratic direction.

“Up to 65 years old is too long. EMB member should not be a position for life. It’s better to have a certain period to make sure moderation on the institution can continue, and making regeneration,” she concluded.

Electoral system

Based on information from Thomas Fann of Bersih 2.0 when met at the Election Study Program held by the Indonesian Election Supervisory Body (Bawaslu) in Bali (12/12), the choice of the Malaysian electoral system was pursed in a proportional representative (PR) system. Previously, in the discourse, there were a proposal for a majoritarian mixed-member system (MMM) or a parallel and mixed-member proportional system (MMP), which was included in the family of mixed member system.

In the MMM scenario, 111 members of parliament members will be elected at the national level by the proportional method of party lists, and 222 district members shall be elected by the district system. While in the MMP scenario, the allocation of seats for party lists is adjusted for any disproportionality arising from the district system. For example, if a party wins 30 percent of the total votes nationally but only gets 20 percent of seats based on the district system, then the party will be given additional seats based on a closed list proportional system to bring the total seats to 30 percent. Under the MMM and MMP system, voters must fill two ballots: one ballot to choose candidate, and another ballot to choose party (Reilly, December 3^rd 2019).

The new Malaysian electoral system will be applied to the 2024 Malaysian Election. If in the parliamentary elections the system will be PR, the ERC still wants the first past the post (FPTP) system as the electoral system for state assembly members (Malaymail, October 2^nd 2019).

Table of Electoral System in Southeast Asia Countries

Countries	National Legislative Electoral System	Members to choose
Malaysia	FPTP (before reform)	222
Indonesia	candidate list PR	575
Thailand	MMP (350 members are chosen with district system, and 150 members are chosen with party list PR system)	500
Philippines	Parallel (245 members are chosen with FPTP system, and 61 members are chosen with party list PR system)	306
Cambodia	PR	125
Myanmar	FPTP	330
Lao	Block Vote (BV)	149
Timor Leste	Party list PR	65
Vietnam	Two Round System (TRS)	496
Singapura	FPTP	89

Source: International IDEA’s data

Election expert from International IDEA, Adhy Aman oftenly said that the trend in the international world, countries with FPTP systems and other systems in the plurality/majority electoral system family switched to the mixed systems and the proportional system. At least, there were 5 countries that already changed their election system to PR system, namely Iraq, Rwanda, Sierra Leone, South Africa, and Moldova. There are also 4 other countries that have changed to a parallel system: Philippines, Monaco, Ukraine and Russia (International IDEA 2005: p. 26).

The case of Thailand, the Block Vote system (BV) which is part of the plurality/majority system family was changed to a parallel system in 1997 (ACE Project data), and changed again to the MMP system in 2017 (International IDEA data). The MMP system was chosen and survives until today because it is considered well provide space for many political colors. Thailand has indeed changed its choice of electoral system to end the dominance of a political party that occurs due to the choice of a plurality/majority electoral system (The Nation Thailand, May 12^th 2015).

In Indonesia, the legislative electoral system since the first election in 1955 had never changed even the constitution does not mandate a specific electoral system for legislative elections. Changes only occur in the party list PR system that was changed in the 2004 Election to a semi-candidate list PR system, and in the 2009 Election candidate list PR system. Those changes were urged by civil society because the party list PR system caused elite domination within the parties and candidacy buying. The party list PR was judged by civil society as a retarder for good party cadres who were not close to the party elites or did not have much money to buy the top number to win the election(interview with Perludem Executive Director, Titi Anggraini, on January 6^th 2020).

PR and mixed systems are suitable to a country with diverse political identities. Unlike a plurality/ majority system which only produces one or two political parties in government. However, Reilly noted, for Malaysia who would implement a PR or mixed system, both of these systems has a number of weaknesses. First, the electoral system will be more complex for politicians and voters, especially in a mixed system. Second, the electoral system creating polarized pluralism because both system provides wide space for more political parties.

Like Reilly, Perludem also cautioned Malaysia about PR system. The change from FPTP to PR is an extreme change because it changes the system fundamentally. In designing changes on electoral system, every stakeholders must not only examine political and electoral implications, but also technical. Changes in the system require adequate time for socialization and adaptation of all stakeholder, especially political parties that already have representation relations with their constituents.

“The example of Indonesia, when we implemented five ballots concurrent elections, the technical implication was missed. We were just looking at the political and electoral design. Therefore, the consequences of each choice must be deeply measured,” Titi stressed.

Constituencies delineation

In purpose to end the gerry mandering, the ERC proposed that the constituencies delineation handle by independent body and not by Malaysia EMB. The ERC also recommended an amendment to the rules in the Constitution requiring constituencies delineation can only be done 8 years after the last constituencies was enacted, and that the constitution contains fair parameters in  constituencies delineation. But, the proposed amendment is considered by Thomas Fann, the Chairman of Bersih 2.0, will face a big challenge because under Article 46 of the Constitution, an amendment can only be done if it is approved by two-thirds of MPs. At present, the position of the parties supporting the Government who proposing electoral reform does not reach two thirds.

“Our Federal Constitution states that it can only be done 8 years after the last one and the last exercise was 2018. But it can be triggered if there is a change in the number of federal seats in the Lower House of Parliament but that requires amendment to Article 46, requiring two-third majority in Parliament which the current government does not have,”explained Thomas in his written statement to rumahpemilu.org via Whats App(7/1).

Reilly in his paper (Reilly, 2019) supports the ERC’s efforts to make amendments. The reason, according to Reilly, in line with the opinion of Malaysiakini and New Narrative, is the rules in the constitution related to the principles of constituency delineation are a source of injustice in elections.

In the 1957 Malaysian Constitution, there are provisions which declared that the number of representatives in rural areas was greater than in urban areas. The background was, ethnic Malays mostly live in rural areas, and the existing politics suppose that Malays dominate Malaysia politics. The additional provision is, the value of vote is may not too disproportionate. The difference in vote value between the two districts may not be more than 15 percent (Reilly, 2019).

In practice, the difference in value vote even becomes 33 percent. For example, the price of one seat in the smallest electoral constituency, Putrajaya, is 15.791 voters. This price is nine times the price of seat in Kapar, 144,369 voters. As a result, in the 2018 Malaysian Election, although the opposition won a vote of 50.8 percent, Barisan Nasional who won 47.37% gained 133 out of 222 seats or equivalent to 59.9 percent (New Narrative, March 21^st 2018).

Responding to Reilly, Thomas said that the ERC wants the constituency delineation in Malaysia Constitution to be closer to the principle of equality of votes. However, due to the demographic characteristics in certain villages⸻the area is large but the number of voters is small⸻the ERC proposes to keep an exception by keeping the 15 percent group and the 33 percent group.

“We agree with the principle of one person one vote with some exception for rural constituencies where land area is large and voters are fewer, that is why the variance of 33 percent below state average. There is a band of 15 percent and 33 percent because we want to strike a balance between equal value in votes and boundaries that separate local communities, resulting in gerrymandering,” explain Thomas.

The ERC is expected to adopt the international principles of constituency delineation. The International Foundation for Electoral Systems (IFES) provides four constituency delineation principles. First, the constituency delineation must be carried out by independent, non-partisan, independent and professional body. Second, equality value in vote. Third, consider community cohesiveness which is determined by factors such as administrative boundaries, geographical conditions, and community similarity. Fourth, the constituency delineation does not discriminate voters based on race, language, religion, or certain social or politic status. Fifth, the process of constituency delineation is open and accessible to the public (IFES 2007: pp. 59-74).

“The more precisely that Parliament can specify these criteria for boundary delimitation based on internationally-accepted standards, the more likely it is that confidence can be restored in the electoral process, and that the outcome will be seen as fair and accepted as legitimate by the public,” Reilly wrote in his paper entitled Malaysian Electoral Reform – Three Proposals, A Report for the Southeast Asia Rules-Based Order Project (2019).

In the case of Indonesia, the principle of constituency delineation is ruled in the Election Law. National and provincial legislative constituencies are determined by national parliamentarians and included in the annex of the Election Law, while cities legislative constituencies are arranged by EMB at city level, then determined by the EMB. This model was criticized by election activists, one of whom was Hadar Nafis Gumay (CNN Indonesia, March 8^th 2017), a former member of the Indonesia EMB. He said, electoral areas should not be determined by the players, and the delineation must be through an open process where the public can give input and criticism.

In Thailand, constituency are entirely delineated by the election commission and given the opportunity to the public and political parties to give input. Parties who disagree with constituency can file a lawsuit to the Administrative Court (The Nation Thailand, 28 November 2018).

In Myanmar, constituency are ruled in the constitution and their formation is handed to the election commission (United States Institute of Peace 2019: 11). Since Myanmar’s independence, the formation of constituency has been determined based on administrative boundaries, not population or the number of voter. As a result, there is an inequality in the value of votes (The Carter Center 2015 Report: 6 and 27).

If we look at the regulations in countries in Southeast Asia, the constituency is determined by the EMB. Malaysia’s experience that the authority of EMB to delineate constituency caused gerry mandering will not be repeated if there is a control mechanism in the recruitment of EMB members, and there is transparent procedures in all election stages. Therefore, no new institution or commission is needed to delineate constituency. Moreover, if the new commission cannot be ascertained the capacity and paradigm of its members are able to strengthen democracy, so the new commission is not a solution.

“The advantage of electoral districts by organizing elections is that if the organizer is independent, guarantees are more available to have an output that is also independent. And, the mechanism is simpler, does not involve many parties and many bodies. So, there are institutions that focus on managing elections, without the need to add new bodies. Even forming a new institution will not be a solution if it is not followed by the capacity, competence and paradigms of members who strengthen democracy, “said Titi.

Overseeing electoral reform

Scheduled, the ERC will submit a full report and reform proposal in mid-2020. Learning from Indonesia’s experience, there are at least two things that need to be done by civil society in Malaysia in order to oversee the ongoing electoral reform. First, ensuring election reform has a connection with improving political quality.

In Indonesia, electoral reform during the 1998 Reformation was emphasized on independent and nonpartisan EMB, making sure the legal basis is able to guarantee the implementation of transparent, free, fair and democratic elections. Indonesia’s electoral reform at that time was part of political reform, one of the aims of which was freedom of participation in politics. Therefore, reforms produce more loose requirement to become a political party participating in the election.

The euphoria of political reform, in fact, distracted civil society attention from the whole Indonesia political system reform. Senior researcher on Indonesia Science Institution, Syamsuddin Haris, argue that 1998 Reformation is vaporous(Rumahpemilu.org, May 2018). Election law has no connection with other political laws and it missed campaign funding accountability norms. As a result, the rules of the game in the new election law is barren to produce good government and doesn’t give an incentive to solve political funding accountability problems.

Knowing the issues discussed in the Malaysian Election Reform, the issue of political finance has become a topic of discussion. It is important to ensure the mechanism of financial transparency and accountability is linked to other political laws. Malaysia should not repeat the failure of Indonesia Reform, because electoral reform will not be meaningful without reforming political parties. Election reform must be conducted in holistic approach. The meaning is reform are designed to connect the electoral system, the party system, the representative system, and the government system.

“One of the lesson learned from political reform in Indonesia is that Indonesia has missed the moment to reform political party institutions. The party, inevitably is an actor who must get a concern to be reformed. Because, access to power is very big on them. So, Malaysia must ensure that political party institutions are reformed to become the main supporting institutions for democracy, “said Titi.

Second, equalizing the political consensus in elites by strengthening civil consolidation. As Reilly explained, reform needs to be closely guarded by civilians because the elite oftenly consolidate to maintain the system that brought them to the power. Mainly changing the electoral system, political parties will calculate the profit and loss for the electoral system proposed by the ERC. For big parties, the FPTP system will preserve their position. But for small parties, the PR system looks promising to give additional seats or keep a few seats.

In the midst of tug in electoral reform, civilians must consolidate to support reform. The ERC has gathered the opinions from various groups, the result must be in accordance with the public interest and heed the principles of international elections. The result must be in accordance with the public needs and heed the international election principles. Learn from Indonesia’s experience, the consolidation of civil society must be able to prevent reforms being controlled by elites. And to guarantee freedom of speech, Malaysian politics must guarantee freedom for the public and the mass media.

 

References:

Data from International IDEA can be accessed on https://www.idea.int/data-tools.

CNN Indonesia. 8Maret 2017. “KPU Minta DPR Tak Urusi Penataan Dapil Pemilu 2019”. News on https://www.cnnindonesia.com/nasional/20170308082258-32-198591/kpu-minta-dpr-tak-urusi-penataan-dapil-pemilu-2019.

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