Holding the EC accountable – Lim Wei Jiet

It is no secret that Malaysia’s electoral integrity fares at the bottom of the world today. Recently, Harvard University’s Electoral Integrity Report ranked Malaysia 114th out of 127 countries surveyed, proving that malapportionment, gerrymandering and unfair electoral conduct is the norm rather than the exception in our country.

In 2014, the Election Commission (EC) was entrusted to review the division of Parliamentary and State constituencies in Sarawak. But before it can do that, the EC has a constitutional duty to inform the public of its proposed recommendations.

Section 4(a) of the Thirteenth Schedule to the Federal Constitution reads that the EC shall “publish in the Gazette and in at least one newspaper circulating in the constituency a notice stating the effect of their proposed recommendations, and…that a copy of their recommendations is open to inspection at a specified place within the constituency…”          

The EC published the Notice which states the following:

i. No alteration to the federal constituencies for the State of Sarawak;

ii. The number of  state constituencies is increased by 11 to make it 82;

iii. One federal constituency is renamed;

iv. Four state constituencies are renamed;

v. The above renaming is detailed in Schedule 1;

vi. The federal constituencies and their corresponding state constituencies, together with the number of voters in each, is detailed in Schedule 2;

vii. The total number of voters in the electoral rolls which was endorsed and gazetted on April 30, 2014, was used for the purpose of this review.

Besides the Notice, the EC also prepared a Draft Constituency Plan (which is a map showing the proposed boundaries and newly created state constituencies in Sarawak) and booklets which lists down the proposed polling districts slated for every proposed state constituency.

But the Kuching High Court was not impressed.

On May 15, 2015, it ruled that the EC’s Notice had not adequately shown the “effect of their proposed recommendations” pursuant to section 4(a). It ordered for the republication of the Notice, effectively putting the whole delimitation process into a halt.          

The reasoning of the High Court lies in section 5(b) of the Thirteenth Schedule to the Federal Constitution, which spells out the public’s right to make objections in a local enquiry regarding the proposed recommendations. The High Court held that in order for the public to effectively exercise this constitutional right to make objections, the Notice must disclose adequate particulars to enable the public to know whether they are adversely affected by the proposed recommendations.

The High Court went on to suggest the 6 minimum particulars which must be disclosed by the Notice:

i. the proposed electoral roll;

ii. the exhaustive list of changes to the Parliamentary and State constituencies;

iii. the polling station districts on the map;

iv. the administrative, physical and infrastructural boundaries on the map;

v. the electoral size; and

vi. the land mass of the proposed constituencies.

Are these 6 particulars important for an average voter to appreciate the impact of the proposed delimitation recommendations?

Before that, some background on how delimitation happens. It occurs when boundaries are changed or a new constituency is added. A parliamentary constituency is made up of several state constituencies. A state constituency is made up of smaller units of polling districts. It is the different permutations of polling districts which cause boundary changes or creates new constituencies.

The electoral roll is crucial because it informs you of your polling district. To know if you have been proposed to be transferred from your previous state constituency into an adjacent or newly added state constituency, a voter can refer to the list of proposed polling districts for each proposed state constituency in the booklet. If a voter notices that his polling district has been listed in another or new state constituency, he knows he is an affected voter in the proposed recommendations.

However, no electoral roll was attached in the notice or anywhere for that matter. Without it, all the particulars in the Notice are meaningless and undecipherable. The High Court found that the only way to access the electoral roll is by buying a compact disc worth RM4,531. In the context of the majority of Sarawakians who live in rural constituencies, how can the EC expect voters to fork out such an amount of money, what more to access the compact disc without basic IT amenities?

The information blackout does not stop there. The electoral roll only reflects the existing 861 polling districts. However, as much as 26 polling districts are newly created in the proposed recommendations. Which existing polling districts have they been split from? Who are the voters from existing Polling Districts that have been allocated to these 26 new polling districts? Even if you possess the electoral roll and was finally able to detect changes to your polling district, you might not be in that polling district after all! This is because you might have been transferred into a new polling district whose list of individual voters remains a mystery even today.

Perhaps that is why the learned High Court judge insists on not merely the December 30, 2014, electoral roll, but the PROPOSED electoral roll – which would reflect the newly proposed 26 polling districts. It would also make sense that the High Court demanded the exhaustive list of changes to the Parliamentary and State Constituencies, as well as a map picturing the Polling Districts to give voters a clearer picture of the gravity of changes proposed.

What of the administrative, physical and infrastructural boundaries on the map, the electoral size and the land mass of the proposed constituencies? Section 2 of the Thirteenth Schedule to the Federal Constitution lists down several guidelines for delimitation, including the “one person, one vote” principle, which the EC is bound to follow. If the public is not aware of the details listed above, they are in the dark on how to analyse whether the proposed recommendations comply with section 2.

On August 7, 2015, the Court of Appeal will decide whether section 4(a) should be interpreted to include the above six minimum particulars.

The outcome matters because the Court will decide whether minimum standards govern the EC on the adequacy of information released to the public. The EC cannot be allowed to negligently or intentionally hide vital electoral information from the public with impunity.

It matters because an uninformed electorate will not know of potential ploys to gerrymander, malapportion and chip off the destiny-changing value of our vote. Let us not fall for this same despicable tactic anymore.

It matters because a biased delimitation is all the incumbent needs to win an election even before a single ballot is casted. The EC’s production of a sloppy Notice is the first of a series of steps to ensure just that.

Let us pray that does not go unrebuked by the judiciary.

*Lim Wei Jiet reads The Malaysian Insider.