This article first appeared in The Edge Malaysia Weekly on July 23, 2018 - July 29, 2018

CLEANING up Malaysia’s election system is a key point in the national reform agenda. The Edge seeks the views of political analyst Dr Wong Chin Huat on what needs to be done to create a level playing field for political parties. This is the second in a series of articles based on a presentation by Wong to the Institutional Reforms Committee.

Part 2

The Edge: What flaws are inherent in the first-past-the-post (FPTP) election system that Malaysia uses?

Wong Chin Huat: The first-past-the-post system creates certain issues:

1.    The ratio between votes and seats is disproportionate. Since votes that are cast for the losers are not translated into seats, some parties would get more seats than their vote share warrants, and some others would get fewer or even none.

    Parties with strong regional bases are rewarded while parties that have supporters scattered nationwide are

penalised.

2.     Election outcomes are volatile and unpredictable. Changes in voting patterns may not produce equivalent changes in seats. The changes may even go in the opposite direction. More than the total percentage of votes, what matters is where the votes are concentrated and to what degree they are packed together.

3.     The parliamentary majority may be manufactured. The government party/bloc may win a majority of seats although its vote share is smaller than its share of seats. Sometimes, the vote share may be less than half the electorate, meaning that the government party/bloc is rejected by a majority of voters. In rare but not improbable cases, the party/bloc that wins a majority of votes may win fewer seats than another party/bloc.

All these can happen despite absolutely equal apportionment of constituencies. In theory, a party that wins a bare 50% of votes in a bare 50% of seats, that is, a bare 25% of total votes, can form a government. This is what often happens in reality. In a country with good delimitation practices like the UK, for example, 19 out of 20 governments after World War II did not win a majority of the votes.

What malpractices can take place under the FPTP system?

Malpractices are simply acts to manipulate and manufacture disproportional results to the extent that election outcomes may no longer be determined by voters. They come in two general forms — malapportionment and gerrymandering — which often reinforce each other but can also take place independently.

In Malaysia, a combination of malapportionment and gerrymandering has produced excessively disproportional vote-seat ratios up until 2018. Take for example the 2004 general election, where BN won 63.85% of votes but 90.87% of seats. This means a ballot for BN was worth 1.42 times the average ballot. On the other hand, PKR won 8.43% of votes but only 0.46% of seats, yielding only 0.05 times an average ballot’s worth. Combining the two, a ballot for BN weighed as much as 26 times that of a ballot for PKR in 2004.

What were the worst cases of weightage against the opposition parties’ supporters?

Compare the value of one ballot for the ruling coalition with the top three opposition parties by vote share. (The ruling coalition from 1955-1969 was the Alliance; from 1974-2013, it was the BN; and in 2018, it is Pakatan Harapan.)

The greatest disparity with the BN was recorded in 1986 when a ballot for BN was worth 40 times a ballot for PAS. Sometimes, the opposition, like Parti Negara in 1959, won no seats at all, making the relative worth of a ballot for Alliance infinity. In 2018, a ballot for PH was worth 2.38 times a ballot for PAS. (See Table)

What is malapportionment and how does it influence election outcomes?

Malapportionment is the manipulation of constituency electorate sizes to create very large and very small constituencies.

In the 2018 election, the largest parliamentary constituency, P102 Bangi (178,790 voters), had nine times as many voters as the smallest one, P207 Igan (19,592 voters).

Unfortunately, these two are not the outliers. Most constituencies do not have approximately the same number of voters.

When all the 222 parliamentary constituencies are sorted in ascending size, the smallest 112 constituencies contain 33% of the electorate while the largest 112 ones contain 68%.* This means in theory, a simple majority could be secured with as little as 16.5% of votes.

(* They do not add up to be 100% because the 111th and 112th constituencies are counted twice.)

Not only are the constituencies severely malapportioned, but the malapportionment is heavily partisan. The 133 constituencies won by Barisan Nasional in 2013 had as little as 52,792 voters on average or about 59% of the average electorate size of the 89 constituencies won by Pakatan Rakyat, [which had] 88,981.

The malapportionment was skewed to Barisan Nasional’s advantage and allowed it to concentrate its campaign on the smaller constituencies, since the majority of voters cannot determine the overall outcome.

What does the Federal Constitution say about malapportionment?

Intrastate malapportionment is expressly prohibited by Subsection 2(c) of the Thirteenth Schedule of the Federal Constitution: The number of electors within each constituency in a State ought to be approximately equal except that, having regard to the greater difficulty of reaching electors in the country districts and the other disadvantages facing rural constituencies, a measure of weightage for area ought to be given to such constituencies.

From 1962 to 1973, the sub-section was followed by a qualifying clause: “To the extent that in some cases a rural constituency may contain as little as one half of the electors of any urban constituency”, which limited intrastate malapportionment to a ratio of 2:1.

In an amendment to the Federal Constitution in 1973, the qualifying clause was removed.

Removal of that clause merely means that a violation of the fair weightage principle might not be challenged in court since the ratio is no longer specified. It does not give the Election Commission (EC) a blank cheque to create grossly disproportional seats.

The excessive malapportionment stemmed from the EC’s deliberate misinterpretation of the exceptional clause on “weightage for area”.

Constitutionally, it can only be applied to a constituency that fulfils the following two conditions: (a) The constituency occupies a vast geographical area; (b) Candidates face difficulties in reaching voters in remote areas and encounter other disadvantages that relate to rural areas.

Unless both conditions are met, a constituency must have an electorate size that is “approximately equal” to others in the same state. The EC unscrupulously turned it into a general clause where constituencies were classified by degree of urbanisation/ruralness — but without objective and consistent definition or criteria — with different ranges of electorate sizes.

Next: Gerrymandering and other forms of electoral manipulation

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