Coalition for Clean and Fair Elections 2.0 (Bersih 2.0) calls upon all democracy-loving Malaysians to strive to change the country’s electoral system after Selangor State Government loses its bid to challenge the delineation proposal by the Election Commission (EC).in Kuala Lumpur High Court today.
 
Selangor should implement Non-Constituency Seats
 
In particular, Bersih 2.0 calls upon the Selangor State Government to implement the Non-Constituency Seats (NCS) before the 14th General Election (GE14)
 
NCS was proposed by the National Conference on Gender and Electoral Reform (NCGER) organised by Selangor women empowerment agency Institut Wanita Berdaya (IWB) last month, as a means to introduce gender quota. The proposal wants all parties to dominate 50% women in their NCS candidate lists.
 
NCS will be allocated to all parties based on their vote shares. Functioning like the Party List-Proportional Representation (List-PR) component in the Mixed Member Majoritarian (MMM) system in countries like Japan, Korea and Taiwan, this will mitigate the negative impact of malapportionment and gerrymandering, which is what the Selangor suit is all about.
 
NCS can also make politics more inclusive and stable in two other ways.
 
First, parties that lose out in multicorners can still gain some representation. Second, NCS are allocated to parties not individual candidates, hence, it would make it harder to bring down a government by way of lawmaker defection.
 
Bersih warns that if nothing is done on the electoral system, the resumed constituency delineation exercise will likely result in not only the distortion, but even the denial of the Selangor electorate if GE14 is held using the new constituency boundaries.
 
Judiciary frees EC from Constitutional Constraint
Bersih 2.0 praises Judge Azizul Azmi Adnan for his rigour, attentiveness and steadfastness in hearing the case, which allowed the shocking frauds and flaws committed by the Election Commission (EC) in the delineation exercise, alteration of polling districts and upkeep of electoral rolls to be examined and exposed.
 
The Selangor suit gave hope that the EC is not above the Constitution but instead must abide by the constitutional provisions of Articles 113-117 and the 13th Schedule in conducting delineation exercise.
 
Unfortunately, in delineation suits in other cases, the pursuit of justice has been rejected at the Court of Appeal stage if not at the High Court stage. These judges claimed that the Election Commission (EC)’s delineation proposals are not decisions and therefore not subject to judicial review.
Such position directly and blatantly contradicts the Federal Court’s judgement in the 2015 Sarawak delineation suit filed by See Chee How and Paul Raja that once the EC submitted its proposal to the Prime Minister, it would be “academic” for the Court to intervene.
 
The contradicting positions by the Federal Court and the Court of Appeal and certain High Court judges in the span of two years are effectively saying this: to demand constitutional compliance of the EC in delineation exercises, stakeholders — state governments, local councils and affected voters — will either act ‘prematurely’ if the EC has not submitted its final proposal to the Prime Minister or act too late on an ‘academic’ matter if the EC has done so.
 
This pair of contradicting positions are effectively saying that the EC can act in disregard and violation of Articles 113-117 and the 13th Schedule of the Federal Constitution in delineating constituencies, beyond query, check and balance by the Judiciary; and if the Parliament chooses to not reject the EC’s proposal, then nothing proposed by the EC in constituency delineation can be considered unconstitutional and held back.
 
Unfortunately, this contradicting yet comprehensively abdicating position of the Judiciary binds Judge Azizul because senior judges in the Court of Appeal have taken the ‘premature’ position, deliberately before the Selangor case’s decision. In the Johor Bahru case, the Court of Appeal judges insisted to deliver their ‘premature’ verdict even though the applicants withdrew their case and the Senior Federal Counsel representing the EC has initially agreed to the withdrawal.
 
This tragic episode in Malaysia’s constitutional history is a wake-up call to all that Malaysia’s captured electoral system cannot be fixed before the independence and integrity of both the Election Commission and Judiciary can be restored.
 
Change FPTP to fight gerrymandering and malapportionment
 
Malaysians believing in democracy must now demand a shift from the pure First-Past-The-Post (FPTP) system we have. The country will slip into greater instability if elections keep producing minority government in term of votes, as in the last poll, where the ruling coalition wins 60% of parliamentary seats with only 47% of votes.
 
With the EC freed from constitutional constraints by the court, malapportionment and gerrymandering can only worse. The Constitution allows a new round of delineation exercises, everytime seats are added to the Parliament and State Assemblies. Seat increase will inevitably be exploited by any government with a two-third majority if their power is threatened.
 
Bersih 2.0 holds that malapportionment and gerrymandering can be best stopped when the seats won by parties are determined by how many votes they get, not where they get the votes. This is  the case under a pure List-PR system as in Indonesia and South Africa or a Mixed Member Proportional (MMP) system in Germany and New Zealand.
 
Under MMP, voters have two ballot, one for constituency, one for party. Lawmakers too consist of two types: constituency representatives and party list representatives. Shares of party ballot will decide the total number of seats parties are entitled to. For example, a party winning 40% party ballots should have about 40 seats in a 100-seat Parliament. If the party has won 25 constituency seats, it will be given 15 party list seats. if this party is defeated in all constituencies due to gerrymandering, it will simply get 40 party list seats. This makes gerrymandering and malapportionment simply pointless.
 
Bersih 2.0 urges all pro-democracy parties to seriously study the desirability and feasibility of a switch from FPTP to MMP after GE14.
 
Meanwhile, it is constitutionally possible for the states especially Selangor, Penang and Kelantan to introduce NCS as an interim measure. This would give us an electoral system that resembles MMM in countries like Japan, Korea and Taiwan, which is a diluted variant to MMP, but nevertheless much fairer and more inclusive than FPTP.
Issued by:
BERSIH 2.0 Steering Committee