Beh Lih Yi
Feb 14, 07 3:52pm
Academician Dr Mavis Puthucheary talks to malaysiakini on whether there is any progress over recommendations for wide-ranging reform of Malaysia’s electoral system. She led a team of researchers in 2001 in studying the mechanism.
She also argues for urgency in reform the system and explains why boycotting an election should not be an option for political parties.
Malaysiakini: Has the need for electoral reform reached a critical point?
Mavis: We have not reached a critical stage but do we want to wait for a crisis before we do anything? The last election brought to the surface many problems which need to be addressed hopefully before the next election (due by April 2009).
After the 2004 general election, Abdul Rashid (Abdul Rahman, the Election Commission chief) did call for a commission of inquiry to be set up, which we all supported. We felt it is time to review not only the electoral laws, but the whole electoral system.
In the past, the elections have gone on relatively smoothly and the results generally have been accepted by everyone, including the losers. This seemed to have changed in the 2004 elections. Not only were there serious administrative glitches which effectively denied people the right to vote, but the whole election process came under attack.
One party called for the elections to be declared null and void and for fresh elections to be held. Another party threatened to boycott future elections if election irregularities and EC bias in favour of the ruling party were not addressed. The government did nothing and the unrest did not translate into mass protests as in some other countries. The landslide victory of the Barisan Nasional (BN) convinced many people that, even though electoral irregularities and fraud were apparent in some cases, the results were a true expression of the will of the people.
With this in mind how are we to ‘interpret’ the boycott of the Batu Talam by-election by PAS and Parti Keadilan Rakyat (PKR)? Are we to accept the BN’s view that these parties used the boycott as an excuse not to contest in a constituency which they knew they had no chance of winning?
While there may be some truth to this view, the boycott of any election carries with it several important risks to the parties that are involved in the boycott. This is because political parties are formed with the objective of winning elections even though their immediate chances may be slim. A party that stays out of elections tends to become irrelevant. Does this mean that we can expect PAS and PKR not to boycott the next general election?
Although the boycott of the Batu Talam by-election may not be significant by itself, it needs to be put in proper perspective. The argument that the parties boycotted the by-election because they had little chance of winning seems weak when we realise that opposition parties have fielded candidates in previous elections even when their chances of winning are almost zero.
This boycott is significant in that it involves the two opposition parties that could have made a difference to the elections had they participated, perhaps not in winning but in gaining considerable anti-BN support. If these two opposition parties join forces and boycott the next election as a protest against the unfairness of the electoral process, we are in for a whole new set of problems.
Boycotts can be very damaging to political stability especially in the short term. This is because a party that has boycotted the election is not likely to let the election take place smoothly. It would try to get its message across in other ways – by disrupting election campaigns and using whatever means at its disposal to dissuade voters from going to the polls.
Our very limited experience with the 1969 election, the only election when a major opposition party boycotted the election, is an indication of what can happen. For the first time, the election process was marred by violence.
But that boycott was a failure in the sense that party boycotting the elections did not succeed in disrupting the elections. It also did not affect the level of competition as many more opposition parties took part in the elections, some of them, like Gerakan, for the first time.
The boycott of the Batu Talam by-election by PAS and PKR may be a good time for us to review our electoral system before the situation gets out of hand. The call by the EC chairperson for a review was timely and should be supported by everyone.
You wouldn’t agree with the opposition to boycott the election as an effective way to push for electoral reform?
There are many other options, other than the boycott, as an instrument to bring about electoral reform. It should only be used as a weapon of the last resort because of its potential to destabilise the country.
If the boycott continues till the next general election, would you consider it as an unhealthy development?
Various recommendations on electoral reform have been made but what are the ways to push for these to be adopted?
The idea is to pressure the government to set up an independent commission of inquiry to examine the whole electoral process and make recommendations for improving it. The commission should be given full powers to determine its scope, function, and terms and references.
Some would say that it is unlikely that the government would accede to this request especially as it does not see any need to make changes which will secure them victory at the polls. But this is a very short-sighted view which political leaders, both in the ruling party and in the opposition, as well members of the public must try to change. This is where increased public debates, public opinion can pressure the government to feel that it too has a stake in ensuring a free and fair election.
The government has not given any indication that it is ready to do so.
We cannot expect a government that has been in power for so long and has a history of doing things without public consultation and consensus to respond positively to changes even when these are clearly in their long-term interest. We need to keep on convincing those in power to realise that in a democracy, political legitimacy is derived not just from the holding of elections, but from public confidence in the fairness of the elections.
In the Ikmas (Institute of Malaysian and International Studies) publication (of the survey findings), we identified some of the areas where further investigation is to be carried out. We only highlighted the problem areas. We made some suggestions about the direction that the reforms should take but did not come out with very firm recommendations. That would be the responsibility of the commission of inquiry.
Ideally who should sit on the commission?
Ideally, we need to have a group of people who come from various walks of life – politicians, not just the party in power but also the opposition; professionals; members of the judiciary, hopefully a former judge or a respected member from the Bar should head the commission; people who represent watchdogs that observe elections; and concerned members of public.
You have emphasised a lot on the legitimacy of parties winning through a free and fair election.
The element of choice is fundamental to a democracy. An election, which for various reasons, does not provide for voters to choose between candidates from different political parties with different party platforms, and where the competition is lop-sided in favour of the ruling party, is not a real democracy. For example, in Singapore the PAP (People’s Action Party) often wins the election on nomination day because of the large number of uncontested seats.
For this reason the constitution of some countries provides incentives for the development of a vibrant opposition, such as in Germany where political parties receive some funding from Parliament, the amount depending on their performance in the previous election.
In addition, various constitutional mechanisms are put in place to ensure that the contest takes place in as level a playing field as is possible. For example, in order that those in power do not have an unfair advantage over their rivals, the power of incumbency is reduced by the transfer of the governmental authority to a caretaker government during the interim period.
The role of the judiciary in mediating between disputes over the elections and in safeguarding freedom of speech is also crucial.
Could you elaborate on the areas in our electoral system that need urgent attention and overhaul?
The way electoral boundaries are drawn up and why constituencies are so varied in their sizes.
One of the basic principles of democratic election is ‘one person one vote’, this is why in a first-past-the-post (FPTP) system it is crucial that constituencies are more or less of equal size, giving some allowance for remote areas where a small population is scattered across large areas.
If there are vast discrepancies in the electoral size of constituencies, the principle that each vote should be of equal value is breached. It has been suggested that one way to ensure fairer representation is to change the electoral system to one based on proportional representation or an electoral system which combines both the FPTP and proportional representation as in the German model.
While is certainly worth considering we (the researchers that were involved in the Ikmas project) did not make any recommendation on which electoral system to adopt in Malaysia because it was felt that this required deliberations by a wider section of society. There was also a reluctance on the part of the researchers to point to a particular electoral system as a solution to all our electoral problems. In the meanwhile it was felt that the existing system could continue to be used, provided efforts were made to stop fixing of elections through gerrymandering, etc.
We also feel that the EC can and should publish its own recommendations to Parliament rather than work together with the government to produce one report which we cannot determine it is EC’s report or EC’s report with input from the government. We feel that if the EC truly wants to be independent, it should publish its own report. Let Parliament disagree with it if it wishes. This method will allow for greater transparency and a clearer separation of powers: the EC’s recommendations will available for comparison with any changes that Parliament wishes to make. In this way the lines of responsibility are clearly drawn.
We feel that the EC has been reluctant, for whatever reason, to establish direct lines of communication with the voting public. This is surprising considering that the EC has a direct responsibility to keep the public informed of any changes in the laws relating to the electoral process and in informing voters of their rights and obligations. The EC does not feel it is its duty to inform a person who has applied to register to vote whether his/her application has been approved or where he/she should go to vote. The potential voter has to go to other sources to get this information – via (the computerised system) or political parties.
This is clearly not satisfactory. The EC needs to play a pro-active role both in informing the public and educating them of their rights and obligations as voters. The lack of proper information in the last election resulted in several voters being prevented from voting because they had not informed of the polling station where they should go to vote.
That was what happened in Gombak in the last election.
Yes, and the computer broke down as well.
Every time when there is an increase in parliamentary constituencies, there has to be a re-drawing of electoral boundaries, The EC has a special responsibility to keep voters informed of the changes and how these changes affect them.
These are responsibilities which the EC cannot shirk. The constitution provides for the EC to get special funding to carry out its duties and so it cannot say that it has no money. It should also maintain independence from the government by relying less on currently serving officers from government to staff its administrative offices and employing its own personnel.
There have also been allegations of voters being transferred from one constituency to another for electoral advantage. The EC should not allow political parties to make such changes. Individuals wishing to transfer their voting rights from one constituency to another have to personally come to the EC office with their identity card.
Most of all, the EC should educate the public that they should not succumb to manipulations by unscrupulous politicians. In the past the EC has taken a liberal attitude with regard to those who have registered to vote in their hometown even though they may be residing somewhere else for purposes of work, etc. There is nothing wrong with this system provided the principle of one-person-one-vote is adhered to.
In the final analysis one has to constantly be on guard against practices that may threaten the workings of our democracy. This responsibility lies with many institutions, not just the EC.
For example, the work of the EC is seriously hampered by the wide powers given to Parliament to make decisions on matters that are properly within the responsibility of the EC. Apart from these formal powers there is also the informal powers of incumbency. The absence of adequate constitutional safeguards such as the appointment of a caretaker government makes it very difficult for the EC to check the abuse of power. It seems that the ruling elite is prepared to support the independence of the EC only when there is no serious challenge to the regime.
However, the role of the EC is to provide the environment for free and fair elections to take place and not to be concerned with who wins and who loses. Its independence is crucial if public confidence in the electoral system is to be assured.
So you are saying we can only expect a free and fair election when the BN feels it is more secure?
This defeats the very purpose of holding elections. If the outcome of the elections is a foregone conclusion, elections are nothing more than a sham. What I am saying is that elections may be held even in authoritarian regimes. But in order that elections confer legitimacy on the party that wins the election, the elections must be truly competitive and fair. Thus all parties contesting elections to win control of the governments, whether at the central or state levels, must aim not just to win, but to win in a fair contest.
We have been hearing demands for free and fair election, but what’s the actual problem in realising this?
The main reason we seem to be facing a deadlock is because Parliament is controlled by a (coalition) that does not see the need for electoral reforms. The only way we as members of public can change this is by showing that it is not only the opposition parties that have a stake in free and fair elections, but the ruling parties as well. It is in the long term interest of the country as a whole.
We do not want to see a situation where an elected government is removed from office in a military coup as in Thailand, or (as in Bangladesh) where the people take to the streets to protest against the appointment of a partisan caretaker government. Incidents of violence and even deaths were reported which could not be quelled by the imposition of emergency rule. In both cases democracy suffered a temporary setback. Obviously these extreme measures can and should be avoided by acting now to correct weaknesses in the present system.
What happened to the Ikmas’ recommendations on electoral reform?
Nothing much. Some opposition parties and NGOs tried to mobilise public support for our recommendations by holding seminars and internal discussions. But the government and the EC have remained silent. The EC chairperson, in malaysiakini reports (based on an exclusive interview in 2003), did suggest several reforms that we have also recommended such as the establishment of an independent caretaker government.
But these are not areas that the EC can do anything about, because it is Parliament that has the responsibility for matters that require amendments to the constitution and the laws of the country. What we need is to make sure that the commission does not take a piecemeal approach to electoral reform.
A comprehensive approach that examines the different political structures and their inter-relationships is likely to produce the best results. This will require the participation of a wide section of society comprising leaders of political parties, NGOs and professional associations as well as former members of the judiciary and university professors.
For this to happen we need to mobilise public support for a commission of inquiry to be set up. Its terms of reference should allow the members of the commission to investigate all aspects of our political and electoral system and not be confined to narrow areas such as an examination of the electoral laws.
Is there a need to codify the election laws? For instance we have Election Act, Election Offences Act, several set of election regulations, as well as the EC code of ethics which is not enforceable?
Yes. But some of these, like the code of ethics, tends to be more informal. It is meant to set a standard of behaviour that all political parties accept as necessary for clean elections. With regard to the election laws, several lawyers have complained about the difficulties of wading through the complex system of laws and rules that have to be followed when making an election petition.
There have been a large number of election petitions that have been thrown out by the courts because of some “technical difficulty”. A recommendation was made in one of the chapters in the Ikmas book for the electoral laws to be simplified and made more accessible to the general public.
What is the role of the judiciary in promoting a free and fair election since, as you say, most of the election petitions have been thrown out for technical reasons without a chance to examine substantive grounds.
I feel that the general attitude of the judges is to uphold the status quo unless there are blatant irregularities in the conduct of the election that have affected the outcome. For example, in order to win an election petition, it is not enough to show evidence of irregularities.
The petitioner also (need) to show that he lost the election because of these irregularities. This is, of course, not easy especially if he lost the election by a wide margin. The court should take a more flexible approach and view that the existence of some irregularities, however small, as enough to declare the election null and void.
In other words, the courts should see their role as that of upholding democratic principles. Such an approach would send out the right signals to all political parties as well as to the EC. Howeer, the judiciary’s powers have also been restricted by changes in the electoral laws to make it illegal to challenge the election on the basis of irregularities in the electoral rolls. There is no justification for this law and it should be abolished. The recent disclosures that foreigners were given identity cards even though they did not qualify to be Malaysian citizens shows how easily the electoral rolls can be manipulated by those in power to win elections.
Your suggestions like redrawing the electoral boundaries or changing the FPTP system – can these be implemented easily?
Yes, provided Parliament agrees.
Could we see changes being made in time for the next general election if we start now?
This is not likely. Many of the changes recommended need to be studied in greater depth by all sections of society. The media can play an important role in informing the general public of the proposed changes and their implications. In some countries fundamental changes such as a change in the electoral system have been put to the public for approval through a referendum.
Reforms take time so it is essential that we begin the process now. The next two or three years will be sufficient if we start now to bring about the changes provided there is a genuine commitment on the part of the government for reforms.
Finally, what do you think of the general Malaysian attitude towards elections?
Elections in Malaysia seems to focus on the struggle for power to the exclusion of everything else. People who do not understand the workings of democracy, tend to see political participation in very narrow terms – as candidates or supporters of political parties or as voters. The absence of a two-party system has also contributed to the lack of serious debate on important issues.
Political parties are primarily ethnic-based parties, in which politics is viewed as a zero-sum-game. Such an approach tends to exacerbate competition between ethnic groups which can manifest itself in violent conflict. As the potential for ethnic conflict seems to be more apparent during elections, the government has banned discussion of what are called ‘sensitive issues’. As a consequence the debate has gone underground, with even more serious consequences.
At the formal level, there is very little public debate on important issues. Almost every issue is bound to have some ethnic implications. Public rallies have become less effective in getting the message across than ceramah (political talks) because, in such closed spaces, rumours and half-truths are likely to go unchallenged.