To enhance democracy in Malaysia, there is an urgent need to enhance the autonomy and independence of the Election Commission, asserts Francis Loh.
In the original Merdeka Constitution, an impartial Election Commission (SPR) was put into place. Since then, various Constitutional amendments have transformed the SPR into a shell of its original self. Below we list these amendments and some other developments that have compromised the impartiality and autonomy of the SPR.
A history of amendments
The Constitution (Amendment) Act of 1960 amended Article 114 (4) to provide for the removal from the SPR of any member who ‘engages in any paid office or employment outside the duties of his office’. According to various academic studies, this amendment was an attempt to remove the then chairman of the SPR, who had displayed much independence and was non-partisan in conducting the division of constituencies for the 1959 election and then, after the 1959 election, the re-delineation of constituencies in accordance with the new constitutional provisions (which among other things required that the disparity among constituencies be not more than 15 per cent from the average constituency size). His removal failed.
The Constitution Amendment Act of 1962 was yet another attempt to remove the chairman but it also increased the government’s powers of control over the SPR by empowering Parliament to determine the terms of office of the SPR. More importantly, the constituencies earlier delineated by the SPR were annulled by the Act thereby retaining the 1959 constituencies. The method of apportioning constituencies among states then in use was also repealed.
The new 13th Schedule was added to the Constitution with two important consequences. First, the pre-independence 2:1 rural weightage (lowered to within 15 per cent of the average constituency as recommended by the Reid Commission) was restored. Second, power to determine constituencies was transferred from the SPR to Parliament, effectively the party in power. Henceforth the SPR would only delineate and recommend new constituencies to the prime minister who would then table it in Parliament, where only a simple majority sufficed.
More than that, the PM could also make revisions to the recommendations “after such consultation with the SPR as he may consider necessary”, before (re)submitting them to Parliament..
The Constitutional Amendment Act (No 2) of 1973 removed the power of the SPR to apportion constituencies among the various states. Both the number of constituencies and its apportionment among the various states are now specified in the Constitution (Art 46) and thus amendable at any time provided it receives two-thirds’ majority support in Parliament.
The Act further replaced the 1962 requirement contained in 2c of the13th Schedule, with respect to the 2:1 variation in the size of constituencies, with the new stipulation that “a measure of weightage ought to be given to such (i.e. rural) constituencies”. This new wording remains till today allowing for rural weightage but without clearly limiting it.
The Constitution (Amendment) (No.2) Act of 1984 removed the upper 10-year limit for constituency reviews. Thus reviews do not need to be conducted even after 10 years. More importantly, a new clause to Article 113 provides for the review of any affected area by the SPR whenever there is a change in the number of seats in Parliament or any state assembly. This means that the party in power can effect a change in the constituencies at any time and for any portion of the Federation or any state by merely varying the number of seats in the Dewan Rakyat, or those of a state assembly.
The clause further absolves all such reviews from strict compliance with the principles of constituency delineation contained in the 13th Schedule. These latest amendments give the ruling coalition much flexibility in reviewing constituencies. Other than the SPR initiating a review after eight years, the government of the day can change the number of seats in parliament or the state under its control, and then call the SPR to conduct a review. And this can be done without adhering to the rules binding normal reviews.
In effect, the ruling coalition has assumed effective control over constituency delineation as well. The review can be conducted earlier than eight years since the last review. There are no longer clear limits to rural weightage. And all reviews are subjected to the PM’s amendment before being submitted to Parliament for a simple majority approval. Under the circumstances, the rules of constituency delineation are henceforth largely nominal in nature, lending legitimacy to the wishes of the ruling coalition
In 2002, following the prime minister’s announcement that Putrajaya would have its own member of parliament, a motion was passed in the Parliament to create a new Putrajaya parliamentary constituency after which the SPR delineated the electoral boundaries for Putrajaya as well as re-delineated the boundaries for the surrounding areas affected by this move. In fact, just prior to the 2004 elections, a new set of parliamentary seats was created by the SPR.
To enhance democracy in Malaysia, there is an urgent need to enhance the autonomy and independence of the SPR, as well as to strengthen its ability to monitor electoral financing. In this regard we propose that [email protected]����