MEDIA STATEMENT (16 JANUARY 2014)
In response to the recent statements made by the Election Commission (EC) as reported by various media, Bersih 2.0 hereby makes clear the following positions:
A. Resignation of the Election Commission
- The Election Commission (EC) should resign now to allow a new line-up of commissioners to clean up the electoral rolls before the next constituency redelineation. In the past five years, the EC under the leadership of Tan Sri Abdul Aziz Mohd Yusof has failed to enjoy public confidence of its impartiality and professionalism, fundamental to their appointment by His Majesty the Yang di-Pertuan Agong as stipulated in Article 114(2) of the Federal Constitution. Research by groups like MERAP and political parties have pointed to worse *tempering* of electoral rolls, from addition of phantom voters and involuntary transfer of voters, to deletion of genuine voters. Constituency redelineation employing the current *tempered* rolls will only result in the predetermined rigging of the General Elections and undermine the legitimacy of the next elected government, causing political instability.
- The EC Chairman’s statement that the constituency redelineation process would benefit both Barisan Nasional (BN) and Pakatan Rakyat parties only shows his poor understanding and misplaced concern of the process. Constituency redelineation should aim to benefit the people by improving the quality of representation, not any political parties. Constituency redelineation consists of two parts: apportionment, namely how many voters should share a lawmaker; and districting, namely who amongst the voters should be grouped together into a constituency to share a lawmaker.
B. No Increase of Legislative Seats
- Malaysians have been misled by the EC that constituency redelineation must go hand-in-hand with increase of legislative seats. In reality, many countries in the world cap the number of lawmakers despite population growth. From 1911 to 2014, the population of the United States has tripled but the number of Representatives (members of the Lower House of the US Congress) remains at 435 as it was 113 years ago. Malaysia has one parliamentarian for every **63,167** voters. Going by the same ratio, with 714 million voters, India should have a Parliament of **11,300** members but India’s Lok Sabha (lower house) has capped its size to 552 members. These show clearly that a country need not increase lawmakers to match the increase of population or electorate.
- Other things being equal, increasing the number of lawmakers will only weaken their role and space in the legislative process, and undermine parliamentary democracy. In 2012, our 222 MPs met for only 561 hours, *
orwhich comes up to a speaking time of* about 2 hours 32 minutes per parliamentarian. The state lawmakers worked even shorter hours in legislature due to the limited jurisdictions of state. Even in Selangor where the legislature **met** for the longest period across all states, a lawmaker spoke for only 2 hours and 1 minute in average in the entire year of 2012. Other things being equal, more lawmakers mean less time for each lawmaker to speak. To improve legislative quality, we need legislative reform and decentralisation; not pay more lawmakers. While population growth may result in more constituency problems, these problems should be rightly resolved by elected local councils, again not by paying more parliamentarians or state legislators. Increasing the number of lawmakers is only wasting public funds.
- Increase of constituencies in the past had been carried out for two partisan motives, the first of which is to satisfy the growing appetite of the BN component parties, especially UMNO, for seats. With the exception of the 1973 exercise which saw UMNO conceding some seats in the 1974 elections for PAS, which then joined BN shortly after, UMNO was given the bulk of the new seats in every redelineation exercise (see Table 1). The consequence of this practice aided by malapportionment and gerrymandering is dire. In GE13, UMNO and the BN’s second largest component party, Parti Pesaka Bumiputera Besatu (PBB), together won 46% of parliamentary seats with only 32% of votes. Any increase of seats will make it more likely for UMNO and PBB to form a simple majority government with fewer votes – say, 30%.
- The second motive for the increase of seats is to avoid any backlash from gerrymandering and malapportionment. Without seat increase, the EC will find it extremely difficult to create a “safe constituency” for BN without hurting the interests of some incumbents in other constituencies. This will fuel protests by not only the opposition incumbents but also the disadvantaged BN incumbents or aspiring candidates, and this may destablise the ruling coalition. On the other hand, the creation of new constituencies, without claimants from either the opposition or from within the BN, is trouble-free.
- Pakatan Rakyat must therefore reject any proposal to Article 46 in the Federal Constitution just to increase the number of parliamentary seats. However, Article 46 can and should be amended to mitigate inter-state malapportionment, for example towards the direction suggested below in Table 2. If parliamentary seats in the heavily over-represented Pahang, Perak and Johor can be reduced by three, three and two seats respectively, then the under-represented Selangor and Kuala Lumpur can have more seats. To respect the spirit of the 1963 allocation, Bersih does not recommend any adjustment of seats involving the East Malaysian states and territory at this stage. In the same spirit, Pakatan Rakyat should not increase the size of state legislatures in Selangor, Penang and Kelantan.
- Such amendment is however justifiable if it aims to reduce the vast imbalance of constituency sizes across states (inter-state malapportionment). For example, in the GE13, Pahang had only 736,111 voters but 14 constituencies, while Selangor had 2,048,828 voters yet only 26 constituencies, making a Pahang vote nearly twice as valuable as a Selangor vote. This disparity can be easily **reduced** if **three seats can be taken from Pahang to be given to Selangor.**
- The Election Commission violated the Federal Constitution in the 2003 (the Peninsula and Sabah) and 2005 (Sarawak) redelineation exercises by commencing them based on the new numbers of parliamentary and state seats it proposed before Article 46 and the corresponding articles or clauses of the state constitutions or laws were amended. Such acts were openly admitted by the EC in the redelineation reports (page 17, the 2003 Report on the Peninsula and pages 19-20, the 2005 Report on Sarawak). The acts show the EC’s utter contempt of the Federal Constitution and State Constitutions, arrogantly believing that whatever it proposed would be passed by the Parliament and State Assemblies eventually.
- The EC has revealed to the press that it would commence the redelineation process in March when none of the Federal and state constitutions or laws has been amended to increase the number of parliamentary or state seats. We welcome this development if the EC has decided not to recommend any increase of seats. However, if instead the EC intends to repeat its unconstitutional act by redelineating constituencies based on the new totals that have not been approved by the Parliament and Legislatures, Bersih 2.0 will apply for a court injunction to stop the process immediately after the EC commences it. The EC can never act as if it is above the Federal Constitution and State Constitutions anymore.
Table 1 Increase of Seats to Strengthen UMNO’s Dominance (1955-2004)
Table 2: Recommended Reallocation for Parliamentary Seats in the Peninsula
C. No More Unconstitutional Malapportionment
- The provision of **Section 2(c), Part I**, Thirteenth Schedule, of the Federal Constitution stipulates clearly that: “the number of electors within each constituency in a State ought to be approximately equal except that, having regard to the greater difficulty of reaching electors in the country districts and the other disadvantage facing rural constituencies, a measure of weightage for area ought to be given to such constituencies;” This leaves no room for (a) excessive malapportionment and (b) anti-rural mal-apportionment. Outrageously, the EC has been violating the Federal Constitution on both counts.
- To enable excessive malapportionment, the EC created a five-class scheme of malapportionment guide. This scheme, which had no constitutional basis at all, had three variations by region, as shown in Table 3. The inconsistent and incomplete intervals suggest the arbitrariness in the formulation of this scheme. The EC did not even bother to follow its own unconstitutional guidelines. In the 2003 exercise, 10% or 17 out of the 165 parliamentary constituencies in the Peninsula (Selangor 8, Kedah 2, Perak 2, and 1 each in Kuala Lumpur, Negeri Sembilan, Malacca and Johor) **fell into** the largest “metropolitan” constituencies (maximum 70,000 voters), including P10 Kuala Kedah and P16 Baling. **Out of these, with 99,553 voters, P109 Kapar even exceeded the 90,000 upper limit.** Similarly, in the 2005 exercise, 26% or eight out of 31 parliamentary constituencies in Sarawak were made smaller than the smallest “rural constituencies” (minimum 20,000 voters).
- The EC deliberately and despicably violated the Federal Constitution not only in the magnitude but also in the direction of malapportionment. While the Constitution permits the creation of smaller constituencies in rural areas, the EC created super-large constituencies – in both senses of electorate size and geographical area – in the countryside of Kedah, which the BN also lost in the 1999 elections (See Table 4). It is noteworthy that these super-large constituencies were predominantly-Malay.
- Another example of anti-rural malapportionment by the EC is found in P103 Puchong (See Table 5). The parliamentary constituency consists of two state constituencies, N29 Sri Serdang and N30 Kinrara. In the 2003 exercise, Sri Serdang had more than three times the area of Kinrara, suggesting that it was treated as ‘more rural’. However, this relative ‘more rural’ constituency was also packed with nearly twice the electorate of Kinrara, suggesting a pattern of anti-rural malapportionment.
- The excessive malapportionment often results in some state constituencies that are larger than certain parliamentary constituencies in the same state. After the 2003 redelineation exercise, for example, 25% or 14 out of 56 constituencies in Selangor had a larger electorate than that of the smallest parliamentary constituency in the state, P92 Sabak Bernam (30,221 voters). It is ridiculous that many state assemblypersons are needed to serve more voters, compared with some parliamentarians.
- Bersih 2.0 therefore rejects the EC’s announcement to cap metropolitan constituencies at 100,000 as a gimmick to mislead the public. The EC must go back to and abide by the constitutional provision in **Section 2(c), Part I**, Thirteenth Schedule. Deviation from the average electorate size in a state must be fully justified on the ground of transportational and communicational difficulties. The real challenges faced by inland constituency must not be used as the EC’s excuse to deliberately under-represent urban or semi-urban constituencies.
- Working hand-in-hand with a citizen self-empowerment group Engage, Bersih 2.0 is training groups of 100 affected voters or more to submit objection (“representation”) within 30 days from the first day the EC’s new boundaries (“recommendation”) are publicly displayed. If the EC’s recommendation is again characterised by unconstitutional malapportionment, these voters will seek to nullify it in the local inquiries, which the EC must call under **Sections 5-7, Part II**, Thirteenth Schedule of the Federal Constitution. Should the avenue of inquiry fail, Bersih 2.0 will provide legal assistance for the voters to file for a judicial review.
Table 3: The EC’s Unconstitutional Malapportionment Guidelines by Electorate Size and Geographical Area in 2003 and 2005
Table 4: Anti-rural Malapportionment in Kedah in the 2003 Redelineation Exercise
Table 5: Anti-rural Malapportionment in P103 Puchong in the 2003 Redelineation Exercise
D. No More Gerrymandering
- **Section 2(d), Part I**, Thirteenth Schedule, of the Federal Constitution provides a clear safeguard against gerrymandering: “regard ought to be had to the inconveniences attendant on alterations of constituencies, and to the maintenance of local ties.” In the 2003 and 2005 redelineation exercises, this constitutional provision was rampantly violated by the EC in three ways.
- Firstly, the EC carved out a single constituency from two to three local authorities, breaking up the jurisdictions as the natural community of interest and causing inconveniences to both the elected representatives and voters. This problem is most serious in Selangor, where 5 out of its 22 parliamentary constituencies and 2 state constituencies span across 3 local authorities, while 4 parliamentary constituencies and 11 out of its 56 state constituencies span across 2 authorities. (See Table 6)
- Secondly, within the same local authority, sometimes the EC combined into one parliamentary or state constituency communities that hardly shared any common interest. The best example is the N45 Selat Klang state constituency of Selangor, where the fishing **villages on** Pulau Ketam **were** combined with an enclave of Klang Town urban settlement. (See Map 1)
- Thirdly, and in the most obvious way, the EC violated the constitutional provision on “local ties” by breaking up neighbourhoods and merging different parts into different constituencies – again, inconveniencing both the elected representatives and voters.
- Bersih 2.0 calls upon the EC to not even attempt the abovementioned gerrymandering tactics in the next redelineation exercise. As in the case of malapportionment, Bersih 2.0 and Engage will be training groups of 100 or more affected voters to be ready to object gerrymandering and to cause local inquires.
Table 6 Parliamentary and State Constituencies in Selangor That Span Across Multiple Local Authorities
Map 1 The Gerrymandered Constituency of N45 Selat Klang
E. No More “Teleporting” of Voters
- In the 2003 and 2005 redelineation exercises, the EC had apparently abused the opportunity of reorganising electoral rolls to transfer voters across constituencies, without the knowledge let alone consent of the affected voters.
- Kampung Abdullah was a village within the P125 Segamat before the 2003 exercise and remained so after that. In GE12 and GE13, some villagers however found that their registrations have been transferred from Segamat (now P140) to P141 Sekinjang. This resulted in family members voting in different constituencies despite living under the same roof. In the most ridiculous case, in house No. 278-D, Mr Ong found himself the only one voting in Segamat while his siblings and even his wife were now “teleported” to Sekinjang. A thorough survey in Kampung Abdullah found that as many as 1,170 or 39% of the 3,008 registered voters there have been “teleported” (See Map 2). Another 1,224 voters were also found to be transferred from P140 Segamat to P141 Sekinjang from Jalan Buloh Kasap, Jalan Sultan, Jalan Abdullah, Taman Mewah and Jalan Durian. As BN retained Segamat only with 1,217 marginal votes, the “teleporting” of at least 2,236 voters could have changed the outcome.
- The EC has also been transferring voters en masse from one constituency to another in the name of correcting mapping errors in the past. During the 2010 Hulu Selangor by-election, 228 voters from Kampung Tanjung of Batang Kali found themselves transferred en masse from Hulu Selangor to the neighbouring constituency of Selayang.
- Bersih 2.0 holds that by the spirit of Article 119, a voter is registered in the electoral roll of her constituency, until she dies, loses her citizenship, applies to be transferred to another constituency or when the Parliament redelineates the constituencies. Therefore, if mistakes or errors happen in the reorganisation of electoral rolls, and if the voters do not take the initiative to request correction, the EC will have to live with the mistakes or errors until the next redelineation exercise. It cannot transfer the registration of voters unless it is so requested by the voters, or until the Parliament approves the constituency redelineation recommendation.
- Bersih 2.0 calls upon the EC to stop “teleporting voters”, which is a clandestine way of gerrymandering.
- Bersih 2.0 also calls upon members of the public to help discover instances of “teleported voters” amongst friends and families so that all “technical errors” on electoral rolls can be exposed in the redelineation exercise and local inquiries held.
Map 2 The Teleporting of Voters from P140 Segamat to P141 Sekijang
Salam BERSIH! Issued by: The Steering Committee of BERSIH 2.0 which comprises: Maria Chin Abdullah, Dr Farouk Musa, Masjaliza Hamzah, New Sin Yew and Farhana Halim. *edited on 22 Jan 2014 **updated on 24 Jan 2014