Episode 31: Electoral Reform

1.0 Introduction

Malaysia’s electoral system is largely based on a parliamentary democracy paired with a constitutional monarchy. Like the United Kingdom (UK), only one chamber of Malaysia's bicameral Parliament is elected: the Dewan Rakyat. This house consists of 222 members, or MPs, each representing one of the 222 constituencies across the country. Whichever political party or coalition secures the majority of these seats forms the government, as they hold the confidence of the Dewan Rakyat. All MPs are elected through a First Past The Post system (FPTP), which has been in use since the federal legislative council election of 1955, prior to the nation's independence.

67 years have passed since Malaysia's electoral system was first implemented. Although there have been some adjustments over the years, such as the automatic registration of voters [1] and the lowering of the minimum voting age, [2] the system is now showing clear signs of ageing, underscoring the need for substantial reform.

Some of the often-mentioned issues include the malapportionment of constituencies, gerrymandering and the FPTP system. The segments below will discuss the complications brought by these issues and the challenges we face in overcoming them.

2.0 Malapportionment

2.1 Allocation of Parliamentary Seats in Malaysia: Article 46

Unlike the United States, where the number of congressional seats allocated to each state is determined by a census every ten years, the number of seats allocated to each state in Malaysia is fixed and specified in Article 46 [3] of the Federal Constitution. Thus, any changes to the size of a state's delegation to the Dewan Rakyat must be made through a constitutional amendment. The last such amendment occurred almost 20 years ago, in 2005, when the total number of MPs was increased from 219 [4] to the current 222, with the additional 3 seats all allocated to Sarawak. [5]

2.2 Challenges in Implementing Changes

Since 2005, Malaysia’s population has seen steady growth with varying rates across different states. Naturally, this disparity in growth creates a need for adjustments in the size of each state’s delegation. However, making such adjustments requires an amendment to Article 46, which necessitates a two-thirds majority in both houses of Parliament. This may be one reason why the allocation of seats has not changed since 2005. The last time a government had a stable two-thirds majority in the lower chamber was after the landslide victory of the BN government led by former Prime Minister Tun Abdullah Badawi, where his coalition won 198 out of the 219 seats in the 2004 general election, far exceeding the two- thirds majority threshold. No government since that election has held a majority large enough to reach the threshold needed to amend the Constitution. 

While the current government technically has enough MPs to amend Article 46, assuming the opposition opposes such an amendment, they cannot afford to lose a single vote. This poses a significant challenge, as electoral changes like this often involve contentious negotiations and balancing competing interests, making it difficult to achieve unanimous support within the governing coalition. 

Looking back, the amendment to the Constitution in 1973 [6] likely contributed to the issue of malapportionment that exists today. The amendment changed the original text of Section 2(c) of the Thirteenth Schedule from “the number of electors within each constituency ought to be approximately equal” to the current text of “the number of electors within each constituency in a state ought to be approximately equal”. This amendment loosened the original requirement for all constituencies to have approximately equal numbers of electors, replacing it with the more flexible standard that constituencies within a state should have roughly the same number of electors.

2.3 Disparity Between the Size of Constituencies 

2.3.1 Inter-state Disparity

Currently, the disparity exists not only between constituencies but also in the form of inter-state malapportionment. Based on the data from the most recent general election in 2022, the average constituency in Selangor has around 160,000 registered voters, while Perlis has around 65,000 per constituency. Numerically speaking, this means that each vote in Perlis carries roughly twice the weight of a vote in Selangor. This issue is further compounded by the fact that within Selangor, there are 6 constituencies—Bangi, Subang, Damansara, Klang, Kota Raja, and Gombak—each of which has more registered voters than the entire state of Perlis, which is divided into 3 constituencies.

While Selangor is home to 8 out of the 10 largest constituencies (in terms of number of registered voters), Bangi is the most notable, as it is the single largest constituency in the country with 303,430 voters, [7] making it 7 times larger than the nearby Putrajaya constituency. The existence of these large constituencies clearly explains why Selangor makes up 17% of the country’s registered voters but only has 9.9% of the seats in the Dewan Rakyat.

While Selangor is heavily affected by inter-state malapportionment, other states and territories in the federation are also impacted to varying extents. For instance, Terengganu and Kuala Lumpur each make up around 4.3% [8] and 5.4% of the electorate but only have 3.6% and 4.95% of the seats in parliament. However, some states like Pahang and Perak are overrepresented as they each make up roughly 5.3% and 9.6% of the electorate but receive 6.3% and 10.8% of the seats in the lower house.

2.3.2 Intra-state Disparity

As discussed above, the disparity between states is evidently present. However, the amendment to Section 2(c) of the Thirteenth Schedule [9] states that the number of electors in a constituency only needs to be approximately equal to that of other constituencies in the same state, while taking into account the geographical size  and difficulty of reaching voters. Despite this, the current situation does not seem to meet these requirements.

An example is Tanjong Karang and Hulu Selangor, two constituencies in the northern part of Selangor. Hulu Selangor, while being the largest constituency in the state in terms of geographical size, has 154,317 registered voters, [10] whereas Tanjong Karang, which is adjacent to Hulu Selangor, has only 62,194 registered voters. [11] This problem is also prevalent to varying degrees in other states. Unlike the issue of interstate disparity mentioned above, which can only be resolved through constitutional amendment of Article 46, [12] this issue arises from multiple factors. These include the increase in registered voters due to the constitutional amendment in 2018, which lowered the voting age and introduced automatic voter registration, resulting in varying changes in different constituencies. Additionally, since the last delimitation process was done in 2018, changes cannot be made until 2026. [13]

Malapportionment is unacceptable as it goes against the principle of "one person, one vote", leading to unfair representation. In areas with fewer voters, a candidate can win with a smaller voter base, while other districts may have a much larger electorate but still elect only one representative. This imbalance distorts democratic processes, weakens voter confidence, and can skew political power towards specific regions or groups​.

2.4 Sabah and Sarawak

In the discussion on malapportionment of seats between the states, Sabah and Sarawak were not mentioned as they hold a unique status due to their historical, geographical, and political position within the federation. Currently, Sarawak and Sabah are allocated 31 and 25 seats in the Dewan Rakyat, [14] respectively, while being home to around 1.9 million and 1.6 million registered voters, respectively. In other words, they hold 13.9% and 11.2% of the seats in the lower house, while encompassing 9.1% and 7.9% of the nation's electorate, according to the latest figures from the 15th general election. This makes them one of the more over-represented states in the country.

Before the two Bornean states joined Malaya to form Malaysia, the Inter-Governmental Committee (IGC) Report 1962 [15] suggested that Article 46 should be amended to give Sabah 16 seats and Sarawak 24 seats. This was later incorporated into the Malaysia Agreement 1963. [16] Together with Singapore’s 15 seats, the Malayan states, with their 104 members, would be unable to unilaterally amend the Constitution without the consent of Sabah, Sarawak and Singapore, as they would not have the two-thirds majority required for constitutional amendments.

61 years have passed and with the current composition of the Dewan Rakyat, Sabah and Sarawak’s ability to hinder constitutional amendments is no longer present as they currently hold a combination of 56 seats, falling short of the 75 seats needed to prevent an amendment to the constitution.

Aside from their unique status in the federation, Sabah and Sarawak’s geographical size might be another reason for their over-representation in the Dewan Rakyat. Without considering the size of a constituency, it could be easily said that the constituency of Baram with its 59,535 registered voters [17] is unreasonable, considering that the constituency next to it, Miri, is home to 143,229 registered voters, [18] which is 2.4 times that of Baram. However, consideration has to be given to the fact that Baram, which spans 22,075 km², is the second-largest constituency in the country. Numerically speaking, the constituents in Miri are still underrepresented, but large constituencies like Baram and Hulu Rajang to the south have constituents that are harder to reach, as they are located in the interior of Sarawak, where infrastructure is not optimal. If the number of seats allocated to Sarawak and Sabah were reduced, the remaining constituencies would need to be significantly enlarged, potentially covering vast areas. This could present substantial logistical challenges for the Member of Parliament, who would face the difficult task of effectively reaching and representing constituents spread over such extensive territories.

3.0 First Past The Post

Similar to the UK, Malaysia still utilises the First Past The Post (FPTP) system, where a candidate wins an election by simply receiving more votes than the runner-up. In a two-man race, this would not pose a problem, as it means the winner has won a majority of the votes. However, in an election with more than two candidates, it could result in a situation where the winner wins with less than half of the votes, resulting in the winner representing a constituency in which more than half of the voters did not vote for him. This situation is not foreign to Malaysian politics, as the 15th General Election saw 102 candidates win their constituency without securing a majority of the votes.

The FPTP system is detrimental to a democratic society in many ways. For instance, it leaves little to no room for small political parties, making it difficult for them to gain political leverage. [19] An example is the alliance of Gerakan Tanah Air’s performance in the 15th General Election, where they won 0.7% of the national popular vote while not winning any seats in the Dewan Rakyat. In a system where seats are allocated proportionally to the popular vote, any party that wins more than 0.45% of the vote would get at least one seat in parliament. This discrepancy highlights how the FPTP system may marginalise smaller parties despite their popular support, leading to underrepresentation in the legislature. 

While this example may not be as drastic, an even more dramatic example can be drawn from the recent general election held in the UK, where the FPTP system was also utilised. The Reform Party of the UK, which won more than 4 million votes, secured a total of 5 seats in the House of Commons, while the Liberal Democrats, with around 3.5 million votes, won 72 seats in the House. This represents a 14-fold difference in seats, even though the Reform Party won 2% more votes than the Liberal Democrats. The FPTP system can distort the democratic process by disproportionately benefiting larger parties while marginalising smaller parties, even when they secure significant popular support, which should not be the case in a democratic society.

FPTP also induces tactical voting, which is an act of voting for a political party or candidate that a person would not usually support in order to prevent another party or candidate from winning.[20] In other cases, FPTP can also diminish the desire to vote, as voters might think that their votes would be wasted by voting for a candidate of their preference, who is running in a constituency dominated by an opposing party. [21]

Supporters of FPTP, however, might argue that the system offers simplicity and is easier for voters to understand.[22] Compared to other voting systems like ranked choice voting, which is not as straightforward, FPTP provides a clear and straightforward method of electing representatives. Another argument used to defend the use of FPTP is that under this system, it is easier for one party to form a majority in parliament, [23] which helps foster political stability. This can be seen in the aftermath of the 14th General Election, where the Pakatan Harapan alliance, which won around 45% of the popular vote, secured a simple majority in the Dewan Rakyat. However, it must be noted that while FPTP can give a coalition that wins a plurality of the popular vote a majority in parliament, it can also allow a coalition that lost the popular vote to win a majority of the seats in parliament. This happened in the 13th General Election, where the Barisan Nasional coalition lost the popular vote to the Pakatan Rakyat coalition but still won 133 seats in the Dewan Rakyat, 15 seats shy of a two-thirds majority. 

In conclusion, while FPTP offers simplicity and can foster political stability, it distorts democratic representation by marginalising smaller parties, encouraging tactical voting, and occasionally allowing parties that lose the popular vote to win a majority of seats in parliament.

4.0 Gerrymandering

Gerrymandering is the practice of redrawing electoral district boundaries to advance the interests of the controlling political faction. The term is a portmanteau that was first coined in 1812 when people noticed that a district approved by the governor of Massachusetts, Elbridge Gerry, resembled a salamander. Gerrymandering leads to districts with unnecessarily complex shapes.[24] In the United States, although there are laws, both at the state and federal levels, to safeguard the rights of citizens during the redistricting process, these laws do little to reduce partisan gerrymandering. [25]

In the United States, states redraw their legislative and congressional district lines following the census every 10 years. However, as communities change, redistricting is critical to our democracy; maps must be redrawn to ensure that districts are equally populated, comply with laws such as the Voting Rights Act of 1965, and are otherwise representative of a state’s population.[26] Regardless, the process is often used to draw maps that skew election outcomes, making them detached from the preferences of voters. Rather than voters choosing their representatives, gerrymandering empowers politicians to choose their voters to their advantage. This tends to occur especially when line drawing is left to legislatures controlled by one political party. [27]

While legislative district shapes may look wildly different from state to state, most attempts to gerrymander can best be understood through the lens of two basic techniques: cracking and packing. Cracking splits groups of people with similar characteristics, such as voters of the same party affiliation, across multiple districts. With their voting strength divided, these groups struggle to elect their preferred candidates in any of the districts. On the other hand, packing is the process whereby map drawers cram certain groups of voters into as few districts as possible. In these few districts, the “packed” groups are likely to elect their preferred candidates, but their voting strength is weakened everywhere else.[28] Therefore, some or all of these techniques may be deployed by map drawers in order to build a partisan advantage into the boundaries of districts.

Furthermore, gerrymandering can have a significant and dangerous impact, especially by segregating voters by race to favour a particular party. In the context of the United States, residential segregation and racially polarised voting patterns, especially in southern states, mean that targeting communities of colour can be an effective tool for creating advantages for the party that controls redistricting.[29] The Supreme Court decision in Rucho v. Common Cause [30] deemed partisan gerrymandering as valid and constitutional. Although the Voting Rights Act of 1965 and the United States Constitution prohibit racial discrimination in redistricting, the correlation between party preference and race often leads to the situation where the decision in Rucho v. Common Cause [31] opened the door for Republican-controlled states to defend racially discriminatory maps on the grounds that they were permissibly discriminating against Democrats rather than impermissibly discriminating against Black, Latino, or Asian voters. [32]

In Malaysia, the process of gerrymandering was attempted but ultimately failed during the General Election in 2013. This can be seen in two constituencies: Lumut and Seri Serdang. Lumut, Perak, experienced one of the most significant gerrymandering occurrences in the country. It was a seat won by Parti Keadilan Rakyat prior to redelineation but is also a bastion of Barisan Nasional voters. Sitiawan, a town in Lumut, contains the bulk of the opposition votes. The 2016 redelineation exercise resulted in excision of Sitiawan, which was moved to Beruas, a Democratic Action Party safe seat. The projected outcome would have resulted in Barisan Nasional winning back the seat by over 2,000 votes. However, due to changing political preferences in the subsequent 14th General Election, the Pakatan Harapan party managed to retain the seat, winning by a narrow margin of 400 votes. [33]

On the other hand, in the state constituency of Seri Serdang, Parti Se-Islam Malaysia, which was then part of Pakatan Rakyat, won the seat with a comfortable majority of 62.1% of the votes during the general election in 2013. However, the 2016 redelineation exercise resulted in the excision of many Pakatan Rakyat supporters from Seri Serdang. Moreover, a pro-Barisan Nasional district was added, weakening Parti Se-Islam Malaysia’s hold on the seat. Regardless, due to changing political preferences during the 14th General Election, the redelineation resulted in Parti Amanah Negara—a component party of Pakatan Harapan, winning the seat with a similar majority to that achieved by Parti Se-Islam Malaysia in 2013. [34]

5.0 Conclusion

In conclusion, although electoral problems such as malapportionment, FPTP systems, and gerrymandering do exist in Malaysia, they are challenging to resolve. Firstly, these issues are often institutionalised through complex legal and political frameworks that benefit incumbent parties by skewing the representation in their favour. Reforming these systems would require constitutional amendments and political will, which are difficult to achieve in a context where those in power benefit from the status quo. Additionally, these systems tend to exaggerate the dominance of larger parties while marginalising smaller parties, making it less likely for a broad coalition of interests to push for electoral reform. The lack of proportional representation makes it difficult for reformist voices to gain sufficient legislative power to advocate for changes. Moreover, there is limited public awareness and understanding of these electoral issues, which reduces pressure on policymakers to address them. Ultimately, addressing these electoral challenges requires a multifaceted approach that includes legal reform, political will, and active civic engagement.

Bibliography

[1] Constitution (Amendment) Act 2019 (Act A1603) (Malaysia) S.3(b).

[2] Constitution (Amendment) Act 2019 (Act A1603) (Malaysia) S.3(a).

[3] Federal Constitution (Malaysia) Art 46.

[4] Constitution (Amendment) (No. 2) Act 2005 (A1260) S.2(a).

[5] Constitution (Amendment) (No. 2) Act 2005 (A1260) S.2(b)(ii).

[6] Constitution (Amendment) (No. 2) Act 1973 (A206) S.15(1)(a).

[7] The Star. (n.d.). The Star GE15 & 6 States Elections. The Star. Retrieved from https://election.thestar.com.my/default.html. Site accessed on 9 Sep 2024.

[8] Malaysia Now. (2024, Sept 9). What you need to know about the 15th general election. Malaysia Now. Retrieved from https://www.malaysianow.com/election/general/ge15/results. Site accessed on 28 Aug 2024.

[9] See footnote 6 above.

[10] See footnote 7 above.

[11] Seen footnote 7 above.

[12] See footnote 3 above.

[13] Milad Hassandarvish. (2022, Jan 12). Despite 5.8 million new voters, EC says re-delineation to be done by 2026 due to constitutional limitations. Malay Mail. Retrieved from https://www.malaymail.com/news/malaysia/2022/01/12/despite-5.8-million-new-voters-ec-says-re-delineation-to-be-done-by-2026-du/2034494. Site accessed on 28 Aug 2024.

[14] See footnote 3 above.

[15]  Inter-Governmental Committee Report (Malaysia, 1962). Paragraph 19(2).

[16]  Malaysia Agreement (1963). S.9(2).

[17] See footnote 7 above.

[18] See footnote 7 above.

[19] Electoral Reform Society. (n.d.). First Past the Post. Electoral Reform Society. Retrieved from https://www.electoral-reform.org.uk/voting-systems/types-of-voting-system/first-past-the-post/. Site accessed on 30 Aug 2024.

[20] Geiger, C., & Clarke, J. (2024, Jul 1). How does the UK's voting system affect smaller parties? BBC. Retrieved from https://www.bbc.com/news/articles/c977m09v60go. Site accessed on 9 Sep 2024.

[21] See footnote 20 above.

[22] See footnote 20 above.

[23] See footnote 20 above.

[24] Guest, O., Kanayet, F. J., & Love, B. C. (2019). Gerrymandering and computational redistricting. Journal of Computational Social Science, 2(2), 119, 123. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6777516/.

[25] See footnote 24 above.

[26] Kirschenbaum, J., & Li, M. (2021, Aug 10). Gerrymandering Explained. Brennan Center For Justice. Retrieved from https://www.brennancenter.org/our-work/research-reports/gerrymandering-explained?ceid=%7B%7BContactsEmailID%7D%7D&emci=946d3453-90d5-ed11-8e8b-00224832eb73&emdi=ea000000-0000-0000-0000-000000000001&utm_medium=PANTHEON_STRIPPED.

[27] See footnote 26 above.

[28] See footnote 26 above.

[29] See footnote 26 above.

[30] Rucho v. Common Cause, No. 18-422, 588 U.S. 684 (2019).

[31] See footnote 30 above.

[32] See footnote 26 above.

[33] Anonymous. (n.d.). Redelineation Through Visuals. Tindak Malaysia. Retrieved from https://www.tindakmalaysia.org/persempadanan/redelineationthroughvisuals.

[34] See footnote 33 above.