Remaking Malaysia: The give and take in gerrymandering

This article first appeared in The Edge Malaysia Weekly, on August 6, 2018 - August 12, 2018.
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TO encourage public discussion on long-overdue reforms to Malaysia’s election system, The Edge asks political analyst Dr Wong Chin Huat to explain the issues that require attention. This is the fourth in a series of articles based on a presentation by Wong, a fellow of Penang Institute, to the government’s Institutional Reforms Committee.

Part 4

The Edge: What is gerrymandering and how does it affect election results?

Wong: Gerrymandering is the manipulation of the voter composition of constituencies in order to gain seats. Since the votes for all the losers under the first-past-the-post (FPTP) election system, which Malaysia practices, are not translated into seats (in other words, they are “wasted votes”), the number of seats won by a party can be artificially altered by moving the wasted votes across constituencies. Two commonly used methods are cracking and packing.

In marginal constituencies where the manipulator’s opponent party is weak, for example, if its support is just around 50% of the voters, a significant number of its supporters may be moved out to deny it the chance of winning. This method of denying an opponent’s victory is called cracking.

On the other hand, in strongholds where the opponent party is strong, making it not pragmatic to slash its support base to change the outcome, its supporters from neighbouring constituencies may be moved in so that it may win this seat with a bigger margin than necessary and consequently lose other seats. This method of reducing an opponent’s gains is called packing.

Where the number of constituencies is fixed and constituencies are equally apportioned, cracking and packing naturally go hand in hand — when an opponent’s voters are moved out from a cracked marginal constituency, they are also moved into some of the opponent’s strongholds to pack them.

If malapportionment is allowed, then packed constituencies would have not only a high percentage of the opponent’s supporters, but also more voters in total. If the number of constituencies can be increased, then the manipulator can use the new constituencies to pack in its own supporters or crack its opponents’ seats.

While malapportionment can be mathematically ascertained, gerrymandering is more subjective and arguable as there is no universally correct way to determine how a boundary should be drawn. To minimise gerrymandering is to minimise the delimitator’s discretionary power.

The concepts that should guide delimitation include contiguity, compactness and community of interests.

Can the Election Commission create constituencies that cross local council boundaries?

Sub-section 2(d) of the Thirteenth Schedule of the Federal Constitution states that the inconveniences that come with the alteration of constituencies and the maintenance of local ties should be taken into account during delimitation.

This should tie the hands of the Election Commission with considerations of administrative boundary, natural boundary, infrastructural boundary, historical ties and socioeconomic connections. However, none of these is explicitly spelt out to bind the EC.

One of the most obvious violations is the creation of cross-authority electoral constituencies, which causes inconvenience to voters, elected representatives and also local councils.

As Malaysia terminated local elections in 1965, elected representatives often act as intermediates between their constituents and the local governments, to the extent that sometimes, state constituencies are functioning like sub-divisions of the local authorities in cities like Petaling Jaya.

Despite this, the EC has created many cross-authority constituencies in metropolitan areas. The worst example is P107 Sungai Buloh (previously Subang), which spans four local authority jurisdictions, namely Petaling Jaya City Council (MBPJ), Shah Alam City Council (MBSA), Selayang Municipal Council (MP Selayang) and Kuala Selangor District Council (MDKS) (see map).

What other forms of gerrymandering have you seen?

We can see the arbitrary combination of communities in some instances.

Even within the same local authority jurisdiction, communities are often grouped to form a constituency with little regard for local ties and inconveniences as stipulated in sub-section 2(d) of the Thirteenth Schedule.

A case in point is state constituency N38 Astaka (formerly N50 Sitiawan), which was taken out of the P074 Lumut parliamentary constituency to be placed into its northern neighbour P068 Beruas, which are both part of the Manjung district. The initial placement of Sitiawan in Lumut makes more sense as both towns have very close local ties, lying within a distance of 13km by road. In contrast, placing Sitiawan town in Beruas breaks local ties and causes inconveniences as the towns are 37km apart by road.

When election data is examined, the move turns out to be a scheme to crack Lumut, which Barisan Nasional lost by 8,168 votes in 2013, and pack Beruas, which BN lost with a smaller margin of 5,057. As for the N50 Sitiawan state constituency, BN lost it by a whopping margin of 11,820. Moving it from Lumut to Beruas would make the opposition trail by 4,000 at the start while Beruas would be an opposition stronghold with a 17,000-vote margin. Instead of losing both parliamentary constituencies, BN was hoping to win P074 Lumut.

What else has the EC been doing between delimitation exercises?

There had been manipulation of polling districts and changes to their boundaries prior to delimitation.

At the end of the last delimitation exercise, 60% of parliamentary constituencies retained their constituency boundaries that they had at the start, but some of those boundaries were not the same boundaries that they had in the 2003 delimitation exercise.

The EC has constantly been making small changes to constituency boundaries in between delimitation exercises — an unconstitutional practice. A case in point is P062 Sungai Siput, which was officially excluded from the 2016/8 delimitation exercise. The constituency’s boundary used in 2013 and 2018 are visibly different. The name of an Orang Asli polling district, Pos Piah, was retained, but it was used to cover a completely new area, previously in P055 Lenggong. (See maps)

On what basis did the EC make changes before a delimitation exercise?

The pre-delimitation changes were done in the administrative process of altering polling districts (precincts), the building blocks of constituencies. Polling districts in Malaysia are not based on administrative or settlement units such as villages, sections or housing estates. Instead, they are to be drawn up by the EC using its power under Section 7(1) and (2) of the Elections Act 1958.

This section requires the EC to divide each constituency into polling districts after it is delimited in accordance with the Constitution, and when any constituency is altered or a new constituency is created.

The EC must also designate where polling centres for the district are to be set up and publish that information in the government gazette. Under this provision, the division of a constituency into polling districts may be altered by the EC as necessary.

So how does that affect the voters’ interests?

The EC’s discretionary power to draw up polling districts unconstrained by any administrative or settlement units is highly problematic.

First, as the delimitation process boils down to the regrouping of polling districts, arbitrarily-drawn polling districts limit the scope for unconstitutional constituency delimitation to be corrected. For example, if a polling district is drawn in such a way as to span two or more local authority jurisdictions, then it is simply not possible for the constituencies to be within one authority, for which the Thirteenth Schedule provides guidance.

Second, if a polling district that is at the border of a constituency has its boundary altered, then the constituency may also have its boundary altered by default, as in the case of P062 Sungai Siput.

Such a pre-delimitation boundary change is not merely unconstitutional in the sense that the EC has usurped parliament’s power to decide on constituency boundaries as per Sections 9-12 of the Thirteenth Schedule.

It can also deny voters their right to fair representation since the public cannot challenge it in the delimitation process as they are not part of the change, under a narrow interpretation of Section 5 of the Thirteenth Schedule.

(Note: The implications of Section 5 were dwelt on in Part 3 of this series.)

The only way to challenge this is through a judicial remedy, such as the action taken by voters in N07 Kuala Kubu Baru in Selangor, who encountered a similar situation.

Next: Reforming the first-past-the-post system

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