Why do we need non-constituency lawmakers?

Pahang’s abrupt amendment of its state constitution to create five “nominated” seats alongside the original 42 “elected” seats, bringing the total to 47, has caused the opposition to walk out in protest. 

Pahang, however, is not the first. Unelected members are also found in Sabah and Terengganu. Expect more states to follow and understand what this is all about before you decide to support or protest.

Non-constituency lawmakers

“Nominated members” (in Malay, “ahli dilantik”) is the term used in Malaysia and some Commonwealth countries, including Singapore and Kenya, for lawmakers who are appointed without representing a particular constituency.

Generically, they are a subset of “non-constituency lawmakers”, who represent a nation, a state or a large constituency and thus have no specific constituencies.

Malaysian senators who are appointed by either federal government or state assembly and American senators who are elected to represent the entire state are also “non-constituency lawmakers”, but they are in the upper chamber.

Why do we need “(unelected) non-constituency lawmakers” alongside “(elected) constituency representatives” in the same chamber?

To start with, it is not universal to have lawmakers representing constituencies.

Dutch parliamentarians are elected from one nation-wide constituency. Half of the South African parliamentarians are elected nationally, and the other half elected from nine province-wide constituencies.

Closer to home, 25 percent of elected parliamentarians in Thailand are elected on party-list representing the whole country.

Why elect lawmakers when they have no constituencies to service? 

The simple answer is lawmakers are meant to make laws, shape policies, scrutinise government and its budget, and ultimately hire or fire government. They are not meant to be constituency’s welfare officer or liaison officer with government agencies.

Free from constituency responsibilities, non-constituency lawmakers are expected to be more policy- or legislation-orientated. Granted, legislatures need to be equipped with active select committees to monitor every ministry and not rubber-stamps.

Six types of non-constituency representation

Non-constituency representation can be provided by at least six types of systems, which may be grouped into two broad categories – elected and appointed. 

One key purpose of electing non-constituency representatives is to ensure proportionality, so that ultimately most voters get representation in legislation, even though their parties do not win power. 

Of course, this automatically knocks out dirty tricks like malapportionment and gerrymandering of constituencies and transfer of voters.

Proportionality is only possible when multiple representatives are elected from the same constituencies. Greater number of representatives will ensure greater proportionality but also make constituencies too large to remain “a constituency” in the geographical sense.

The most straightforward way is through Party-List Proportional Representation (List-PR) where voters vote for parties (some systems would also allow a choice on candidates), which justifies unseating party hoppers since the mandate is won by parties.

Alternatively, First-Past-The-Post (FPTP) elections we have in Malaysia can be retained with the addition of List-PR elections, producing Mixed-Member Systems, which have two variants.

If shares of party votes decide the overall allocation of seats (both List-PR and FPTP seats), the outcome would be very proportional. This is the Mixed Member Proportional (MMP) system used in Germany, New Zealand, Scotland, Wales, South Korea amongst others.

If shares of party votes decide only the allocation of List-PR seats, then we have the Mixed Member Majoritarian (MMM) or Parallel Voting system in Japan, Taiwan, Nepal, Italy and Mexico amongst others.

Most Mixed-Member Systems give voters two ballots so that they can choose different parties in the FPTP and List-PR elections if they want to. 

However, it is possible for political or operational reasons to give voters only the ballot for FPTP elections and calculate the FPTP vote shares to distribute party list. This was the system used in Thailand’s 2019 election.

Even in the by-appointment family, improving representation is the dominant reasons for having non-constituency lawmakers.

Singapore guarantees at least 12 opposition members in the Parliament. When the number falls short of that, the best performing losers will be appointed as Non-Constituency Member of Parliament (NCMP). 

While the opposition scored the best ever result in July, ie, electing 10 MPs from Workers’ Party, this still fell short of the guaranteed 12. So, two candidates from Progressive Singapore Parties were appointed as NCMPs.

Not confined to partisan preference, under-representation can also happen in a demographic term, as women and ethnic minorities are often under-represented.

In 2003, Terengganu’s PAS state government under menteri besar Abdul Hadi Awang amended the state constitution to allow for the appointment of up to four women and non-Muslim representatives when none is elected. 

In 2018, also by PAS state government, Zuraida Md Noor was appointed as Malaysia’s first women top-up lawmaker. 

The last type of non-constituency lawmakers is appointed not to improve representation, but to distort representation by giving the government a stronger majority.

Government’s bonus seats – up to six – are found in Sabah and the new government has used it to put in the House four politicians who dared not to stand in elections – including PAS Sabah secretary Aliakbar Gulasan and ex-PKR nominated member Jaffri Waliam.

What’s in Pahang? What’s next?

At the cost of at least RM 600,000 per year, Pahang’s addition of five nominated state assemblypersons are clearly government’s bonus seats to give the menteri besar unchecked power, not just over the opposition, but also his government allies.

With the amendment of Article 18 and insertion of Articles 18A, 18B and 18C in Pahang’s State Constitution, the extra five assemblypersons:

(a) will be appointed with a motion passed in the legislature with a simple majority, without going through any elections or meeting any eligibility criterion [Article 18A(1)], effectively a blank cheque for the menteri besar;

(b) will enjoy all power, salary and allowances as elected assemblypersons, except the qualification to be appointed as menteri besar and executive council (exco) members; [Article 18A(4)]

(c) can be terminated by the ruler on the advice of menteri besar on the ground of “national interest”, “national security interest”, “government policy” or “public policy”, which the state government has the sole power to decide and cannot be challenged in court. [Article 18B]

For justification, Pahang menteri besar Wan Rosdy Wan Ismail made two fake claims without blinking his eyes.

The first is that Pahang needs more assemblypersons to serve. If Pahang needs more assemblypersons, why not just increase elected seats? Never mind that Pahang already has the fourth-lowest number of voters per assemblyperson.

The second is that the nominees’ professional qualification will be scrutinised in the House. Why no qualification is mentioned at all under Article 18A(1) or elsewhere?

Pakatan Harapan should promise to reform the “nominated seats” if it takes back Pahang. These government’s bonus seats should be made top-up seats for women and Orang Asli representatives indirectly elected in state elections.

Allocating non-constituency seats based on FPTP vote share – like in Thailand - to pre-named women and Orang Asli candidates will be an important first step to improve demographic representation and to check malapportionment and gerrymandering.

The nine Harapan assemblypersons in Pahang must not stop at walking out.

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WONG CHIN HUAT is an Essex-trained political scientist working on political institutions and group conflicts. He currently leads the clusters on the electoral system and constituency delimitation in the government’s Electoral Reform Committee (ERC). Mindful of humans’ self-interest motivation while pursuing a better world, he is a principled opportunist. - Mkini

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.