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The Malaysian Election Commission: Navigating Electoral Authoritarianism and Political Change

Published online by Cambridge University Press:  14 December 2021

Dian A H Shah
Dian A H Shah*
Affiliation:
Faculty of Law, National University of Singapore, Singapore
*
Corresponding author. E-mail: [email protected]
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Abstract

The urgency of electoral reforms has long been identified as a key to improving democracy in Malaysia. For decades, electoral manipulation through gerrymandering, malapportionment, and issues with the electoral roll and conduct of elections have undermined democratic quality and competition. The Malaysian Election Commission (EC) has – understandably – come under scrutiny for its role in facilitating and sustaining these problems. However, what requires a greater level of attention is the question of how the EC – despite its position as a constitutional institution that exists independently from the other branches of government – has operated in ways that undermined Malaysia's democracy and maintained a dominant party regime for over six decades. This Article brings this to light by examining the structural, institutional, and political conditions that shape the EC's operation, particularly with regard to re-delineation of constituencies and the conduct of elections. It argues that flaws in constitutional design, along with subsequent constitutional amendments, have rendered the EC vulnerable to partisan capture and thus affected its ability to function as an independent constitutional institution. In addition, this Article demonstrates how changes in political imperatives and judicial restraint in reviewing the EC's decision-making have also contributed to the deficiencies in Malaysia's electoral democracy.

Keywords

Electoral Reform
Type
Article
Information
Asian Journal of Comparative Law , Volume 16 , Supplement S1 , December 2021 , pp. S105 - S120
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of the National University of Singapore

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References

1 The Malay Conference of Rulers is a body comprising the traditional rulers (sultans) of the nine Malay states.

2 Hutchinson, Francis E, ‘Malaysia's 14th General Elections: Drivers and Agents of Change’ (2018) 49(4) Asian Affairs 582CrossRefGoogle Scholar, 586.

3 Ostwald, Kai, ‘How to Win a Lost Election: Malapportionment and Malaysia's 2013 General Election’ (2013) 102(6) The Round Table 521CrossRefGoogle Scholar, 523.

4 See for eg, Lim Hong Hai, ‘Electoral Politics in Malaysia: “Managing” Elections in a Plural Society’, in Aurel Croissant (ed), Electoral Politics in Southeast and East Asia (Friedrich-Ebert-Stiftung 2002) 106.

5 Pal, Michael, ‘Electoral Management Bodies as a Fourth Branch of Government’ (2016) 21(1) Review of Constitutional Studies 85Google Scholar.

6 ibid 88. Pal acknowledges that the constitutional status of electoral management bodies does not completely remove partisan interference; instead it merely channelled such interference in other directions.

7 Federal Constitution of Malaysia 1957, art 113.

8 Lim (n 4) 106.

9 Citizenship for the non-Malays was one of the most divisive issues during the constitution-making process. The Malay political leaders agreed that non-Malays would be granted citizenship in exchange for the agreement by non-Malay leaders that Islam would be constitutionally recognized as the ‘religion of the Federation’ and that Malay would be the sole national language.

10 Lim (n 4) 105.

11 That is, (a) the appointment of a Prime Minister; (b) withholding consent to a request to dissolve the Parliament; and (c) convening a meeting of the Conference of Rulers only where matters implicate the privileges, position, honors, and dignities of their royal highnesses.

12 Federal Constitution of Malaysia, art 114(3).

13 Federal Constitution of Malaysia, art 114(4).

14 For eg, the Elections Offences Act 1954 (which spells out electoral offences and illegal conduct during elections), Elections Regulations 1981 (a set of regulations promulgated by the EC on the procedures and rules relating to the conduct of elections), and the Election Commission Act 1957 (which governs the administration of the EC).

15 Elections Act 1958, ss 3(d) and 4(5).

16 Elections Act 1958, s 15.

17 Elections Act 1958, s 16(2).

18 See James Chin, ‘History and Context of Public Administration in Malaysia’, in Evan M Berman (ed), Public Administration in Southeast Asia: Thailand, Philippines, Malaysia, Hong Kong, and Macao (Routledge 2011) 143–145. Until the 1950s, non-Malays were excluded from the civil service in pre-independent Malaya because the British colonial government saw the need to co-opt the Malays population in governance to serve their needs.

19 This was the case in 2014, as reported in Findings of The People's Tribunal on Malaysia's 13th General Elections (The Coalition for Clean and Fair Elections, 25 March 2014) <https://www.bersih.org/wp-content/uploads/2014/03/Peoples-Tribunal-on-GE13-Findings-Report.pdf> accessed 10 February 2021.

20 Interview with an EC Commissioner in February 2021.

21 Societies Act 1966, s 17.

22 Societies Act 1966, s 5.

23 For a detailed explanation of these conditions, see PEMANTAU, Election Observation Report of the 14th Malaysian General Election (The Coalition for Clean and Fair Elections 2018) 46–47 <https://www.bersih.org/wp-content/uploads/2018/07/PEMANTAU-Election-Observation-Report-of-the-14th-Malaysian-General-Election.pdf> accessed 10 February 2021.

24 Hutchinson, ‘Drivers and Agents of Change’ (n 2) 596.

25 See for eg, Francis E Hutchinson, ‘GE-14 in Johor: Shock or Just Awe?’, in Francis E Hutchinson & Lee Hwok Aun (eds), The Defeat of Barisan Nasional: Missed Signs or Late Surge? (ISEAS 2019) 328; Nadzri, Muhamad M N, ‘The 14th General Election, the Fall of Barisan Nasional, and Political Development in Malaysia, 1957–2018’ (2018) 37(3) Journal of Current Southeast Asian Affairs 139CrossRefGoogle Scholar, 155.

26 Lim (n 4) 126.

27 ibid.

28 Khoon Kim Hoong, ‘MALAYSIA 1990: The Election Show-down’ [1991] Southeast Asian Affairs 161, 161.

29 Federal Constitution of Malaysia, art 114(4).

30 Lim (n 4) 108. The government's dissatisfaction with the EC was recorded in the minutes of the ruling coalition's committee meeting – the chairman from the UMNO party expressed that the EC made a “major mistake” by not discussing the electoral re-delineation report with the Cabinet, so see Lim (n 4) 113.

31 Sothi Rachagan, ‘The 1974 Parliamentary Election in Peninsular Malaysia: A Study in Electoral Geography’ (PhD Thesis, School of Oriental and African Studies, University of London, 1978) 49. In its pre-amended form, Article 114(4) stated: ‘A person is disqualified for appointment as a member of the Election Commission if he holds any other office of profit or is a member of either House of Parliament or of the Legislative Assembly of any State’. (emphasis added)

32 Election Commission Act 1957, s 9(1).

33 Election Commission Act 1957 s 5.

34 Wong characterizes Malaysia as an electoral authoritarian regime. See Wong, Chin-Huat, ‘Constituency Delimitation and Electoral Authoritarianism in Malaysia’ (2018) 107(1) The Round Table 67CrossRefGoogle Scholar.

35 Andreas Schedler, ‘The Logic of Electoral Authoritarianism’, in Andreas Schedler, Electoral Authoritarianism: The Dynamics of Unfree Competition (Lynne Rienner 2006) 3.

36 Lim (n 4) 104.

37 ibid 105. See also Ostwald (n 3) 523, arguing that malapportionment has been justified on the basis that the infrastructure issues in rural areas necessitated smaller number of voters in rural constituencies, so as to alleviate problems in representatives reaching their constituents.

38 Lim (n 4) 106.

39 ibid.

40 ibid 107.

41 ibid 108.

42 Lim (n 4) 111.

43 It was not difficult for the BN coalition to engineer constitutional amendments during its rule. Until 2008, it has always held a two-thirds majority in parliament.

44 Tey, Tsun Hang, ‘Malaysia's Electoral System: Government of the People?’ (2010) 5(1) Asian Journal of Comparative LawCrossRefGoogle Scholar.

45 Federal Constitution of Malaysia, Thirteenth Schedule, s 2(c).

46 Wong (n 34) 72.

47 ibid 73.

48 ibid 71.

49 ibid 70.

50 Ostwald (n 3) 524. In other words, this means that BN won only 47% of the popular vote and yet it managed to secure 60% of the seats in Parliament. By contrast, in the 2008 general elections, BN won 51% of the popular vote, and secured 63 per cent of parliamentary seats.

51 This was the case in the 2018 re-delineation exercise: 4 such mixed seats were reduced, and 3 Malay-majority seats were added. See Merdeka Center for Opinion Research, Malaysia General Elections XIC Outlook: Prospects and Outcome (26 April 2018) <https://merdeka.org/v2/malaysia-general-elctions-xiv-outlook-prospects-and-outcome/> accessed 23 March 2021.

52 This was the case with the 2003 re-delineation exercise, where 26 new parliamentary seats were created, most of which were semi-urban mixed seats. This was in response to the results of the 1999 election, where the BN coalition lost considerable support in the Malay constituencies to its rival party, PAS. In the 2004 general election, under the freshly re-delineated boundaries, the BN coalition won convincingly, securing 63% of the popular vote and 90% of the seats in parliament. See Francis Loh, ‘Understanding the 2004 Election Results’ 3 Aliran Monthly (2004) <https://aliran.com/archives/monthly/2004a/3g.html> accessed 22 March 2021.

53 Federal Constitution of Malaysia, Thirteenth Schedule, s 5.

54 Wong Chin Huat, ‘Constituency Delimitation and Electoral Authoritarianism in Malaysia’ (2018) 107(1) Roundtable: The Commonwealth Journal of International Affairs.

55 The Coalition for Clean and Fair Elections, ‘Seven Major Violations by the Election Commission and the Prime Minister in the Redelineation Report’ (Media Statement, 3 April 2018) <https://www.bersih.org/wp-content/uploads/2018/04/52-Redelineation-analysis-ver6-FINAL.pdf>.

56 ibid. See also Chong, Chan Tsu, ‘Democratic Breakthrough in Malaysia – Political Opportunities and the Role of Bersih’ (2018) 37(3) Journal of Current Southeast Asian Affairs 109CrossRefGoogle Scholar, 123.

57 Kerajaan Negeri Selangor v Suruhanjaya Pilihan Raya and Ors [2018] 1 LNS 982 (Court of Appeal, Putrajaya).

58 Article 113(2) stipulates that the EC shall review the division of federal and state constituencies and recommend such changes as the EC may think necessary in order to comply with the Thirteenth Schedule (emphasis added).

59 Kerajaan Negeri Selangor (n 57) para 6.

60 ibid para 11.

61 ibid.

62 Kerajaan Negeri Selangor v Suruhanjaya Pilihan Raya Malaysia & Ors (No 3) [2018] 8 CLJ 111, paras 44 and 48 (High Court, Kuala Lumpur).

63 Suruhanjaya Pilihan Raya & Ors v Kerajaan Negeri Selangor [2018] 4 MLJ 350, 356 (Court of Appeal, Putrajaya).

64 Peguam Negara Malaysia v Chan Tsu Chong [2018] 2 CLJ 274, para 46 (Court of Appeal, Putrajaya).

65 Kerajaan Negeri Selangor (n 62) para 40. In this case, Justice Azizul Adnan conceded that he was bound by the decisions of the Court of Appeal holding that such matters were non-justiciable.

66 Weiss, Meredith, ‘1999 Malaysian General Elections: Issues, Insults, and Irregularities’ (2000) 40(3) Asian Survey 413CrossRefGoogle Scholar, 432.

67 Chan (n 56) 110.

68 ibid 118.

69 Nadzri (n 25) 154–155.

70 See generally, Chan (n 56); Harold Crouch, Government and Society in Malaysia (Allen & Unwin Australia 1996).

71 PEMANTAU (n 23) 39. Some voters also reported that their names were no longer found on the electoral roll and had been removed without their knowledge.

72 ibid 73.

73 ibid 41.

74 See Marcel Jude v The Chairman, Election Commission of Malaysia [2014] 10 MLJ 216 (High Court, Kuala Lumpur); Charles Anthony Santiago v Suruhanjaya Pilihanraya Malaysia & Anor [2014] 7 MLJ 271.

75 Kai Ostwald, ‘Electoral Boundaries in Malaysia's 2018 Election: Malapportionment, Gerrymandering and UMNO's fall’, in Edmund Terence Gomez & Mohamed Nawab Mohamed Osman (eds), Malaysia's 14th General Election and UMNO's Fall: Intra-Elite Feuding and the Pursuit of Power (Routledge 2020) 86.

76 PEMANTAU (n 23).

77 Interview with an EC Commissioner in February 2021.

78 See generally, Hutchinson, ‘Drivers and Agents of Change’ (n 2); Nadzri (n 25); Ostwald (n 75); Chin-Huat Wong and Kee Beng Ooi, ‘Introduction: How did Malaysia End UMNO's 61 Years of One-Party Rule? What's Next?’ (2018) 107(6) The Round Table 661.

79 Johan Saravanamuttu, ‘The March 2008 General Election in Malaysia as a Historical Conjuncture’, in N Ganesan (eds), Conjunctures and Continuities in Southeast Asian Politics (ISEAS 2019) 191.

80 See Nadzri (n 25) 160; Hutchinson, ‘Drivers and Agents of Change’ (n 2) 589–590.

81 Ostwald (n 75) 87.

82 Interview with an EC Commissioner in February 2021.

83 Election Commission of Malaysia, ‘15th Malacca State Legislative Assembly General Election Matters', (Press Release No. 13/2021, 18 October 2021).