The purpose of this research is to identify issues and problems relating to the implementation of first-past-the-post (FPTP) system in Malaysia. The study also will assess the implementation of FPTP in Malaysia based on the concept of free and fair elections. Besides that it will examine the suitability of other electoral system such as Proportional Representation (PR) and Single Transferable Vote (STV) in Malaysia. Based on the analysis, it will propose recommendations for improvement in the implementation of FPTP in Malaysia. This research is generally a legal research using both approaches i.e. doctrinal research and socio-legal research.

 

RESEARCH OBJECTIVE

  1. To identify issues and problems relating to the implementation of first-past-the-post (FPTP) system in Malaysia.
  2. To assess the implementation of FPTP in Malaysia based on the concept of free and fair elections.
  3. To examine the suitability of other electoral system such as Proportional Representation (PR) and Single Transferable Vote (STV) in Malaysia.
  4. To propose recommendations for improvement in the implementation of FPTP in Malaysia.

 

RESEARCH QUESTIONS: 

  1. What are issues and problems in the implementation of FPTP system in Malaysia?
  2. To what extent the implementation of FPTP in Malaysia in consistence with the concept of free and fair elections?
  3. To what extent other electoral system such as Proportional Representation (PR) and Single Transferable Vote (STV) is suitable for implementation in Malaysia?

 

Research Background

Electoral system is significant in shaping the rule of the game under which democracy is practiced and in influencing the development of parties and government organizations. The electoral system is not merely a product of electoral laws or regulation, but a functional system derived from the constitutional structure and framework of government, thus it is difficult to be changed as it will involve complicated constitutional and legal reform. In this part, we seek to examine whether the existing electoral system in Malaysia is in compliance with the standard of democratic election based on the concept of free and fair elections.

Malaysian electoral system is based on the first-past-the-post (FPTP) system, which is noted for its simplicity and providing a clear-cut choice for electors. The system which commonly supports stability and coherence of government is based on single-member district (See art.s 46, 113(3), 113(3A), 116, 117, the Thirteenth Schedule of the Federal Constitution; and Section 7 of the Election Act 1958). On the voting day, voters are presented with names of nominated candidates, and required to vote by choosing only one of them (See Section 13(2) of the Election Act 1958, and Regulations 19, 25, 25D(7) and 17, 19 & 25F of the ECER). The victorious candidate is simply the person who wins most votes, even his vote is less than half of total valid votes (See Section 13 of the Election Act 1958 and Regulations 25D(7) and 25F of the ECER). Currently, first-past-the-post system is found in 47 countries including the United Kingdom, Canada, India and the United States. In fact, this system is regarded as the most popular system among established democracies, as 22 established democracies which have a total of 1458 million population or 70.3% of people in established democracy use this system (Reynold, 2005).

In spite of that, this system has been subject to strong disapproval, and in some countries such as New Zealand, the South Africa, Fiji and Afghanistan, it has caused the change of electoral system (Banducchi, 1999). In Malaysia, the first-past-the-post system was described as ‘democratically’ problematic, with severe vote-seat disproportionality. In Suara Rakyat Malaysia (SUARAM) Human Right Report 2013, Wong Chin Huat (2014) claimed that:

“The 13th General Election (GE13) for Malaysia, held on 5 May 2013, was the most competitive in the nation’s history whereby the 58 years of unbroken rule by the Barisan Nasional (BN, National Front) coalition and its forerunner Alliance was challenged with unprecedented vigour by the opposition coalition Pakatan Rakyat (PR, People’s Alliance). And for the first time in history, an opposition bloc actually won more votes than the ruling coalition dominated by United Malays National Organisation (UMNO) but the latter nevertheless remained in power as a minority government in terms of votes. While the First-Past-The-Post (FPTP) electoral system had always amplified the Alliance/BN’s electoral majority, for the first time, the ruling coalition’s legislative majority was only made possible through the constituency delineation system. “

The criticisms are supported by material facts which clearly illustrate vast disparity between the ruling coalition’s share of popular vote and its share of seats in the House of Representative. At the same time the opposition parties are almost always grossly under-represented. Therefore it was suggested that the first-past-the-post system must be scrapped in order to implement a new system by which the ratio of seat obtained will proportionately represent the vote. In this respect, Johan Saravanamuttu (2014) commented that:

“Malaysia’s FPTP system, imbued as it is with a generous proportion of ‘rural weightage’, continues to favour BN, oftentimes generating large manufactured parliamentary majorities. This feature has led to a massive mal-apportionment of seats to constituencies that are the traditional strongholds of BN. While mal-apportionment is not inherently a function of the FPTP system, Malaysia is now famously among the worst culprits on this score, in the same league as Zambia and Ghana. Without doubt, the rural constituencies have favoured BN while the urban middle classes, now constituting a majority of voters in urban and semi-urban constituencies, have clearly shown a preference for the Opposition coalition. However, these constituencies do not command a majority of seats in Parliament. Some may argue that electoral politics has reached an impasse but, after two general elections, Malaysia’s two-coalition system seems to have gained some traction and, thanks to federalism, PR has considerable control of state governments in the Malay heartland and control of the more urbanised states of Selangor and Penang.”

Thus, the crucial question here is whether the first-past-the-post system fails to comply with the basic standard of election for resulting ‘unfair’ distribution of seats. It is important to note that the concept of fairness in electoral system, not only confined to the issue of vote-seat proportionality, but can be viewed in various other factors. In other words, the electoral systems are not only to be judged by their outcome, but also must be judged based on its process. The best way to judge the electoral system is by assessing the effectiveness based on the concept of free and fair elections.

Today, the term ‘free and fair’ becomes important catchphrase to explain the standards of democratic election and to assess the effectiveness of an election. Normally this term include the requirement that an election must be periodic, sustainable, transparent, and genuine. Besides the fact that the terms like ‘free’ and ‘fair’ have no easily verifiable content and often being used subjectively, they have been accepted as the simplest way to explain complicated and so much debated standards of democratic elections.

The term not only widely used by popular mass media, but also widely referred to in scholarly writings and some formal documents. Started with Gill’s works in 1994, the term ‘free and fair elections’ seems to be more precise and extensive terms for electoral benchmark. According to David Beetham(2005) the principle that elections in a democracy should be ‘free and fair’ is now established, as there are also the international standards governing what this means in practise.

The term has been officially used in an international document in 1994, when the IPU adopted the Declaration on Criteria for Free and Fair Elections. The declaration affirms that in any state, the authority of the government can only derive from the will of the people as expressed in genuine, free and fair elections held at regular intervals on the basis of universal, equal and secret suffrage.

In Malaysian context, the term ‘free and fair’ also had been used to describe the quality of election, when an independent body called the Malaysian General Election Watch (1990) chaired by the former Lord President Tun Muhamad Suffian, produced 46-page report with the conclusion that the 1990 General Elections were by and large free, but not fair. With some important qualifications, the report gives three reasons why the said election was considered as free i.e: (a) the parties had no problem in fielding their chosen candidates; (b) there was no impediment to independent candidates contesting; and (c) the vast majority of voters who wanted to vote were not prevented from doing so. For the findings that the election was not been considered as ‘fair’ the Election Watch highlighted the problem of the free and fair media, and the impartiality of the EC.

Standard of election is a very important tool to assess elections and to distinguish genuine elections which conform to the democratic principles from ‘fake’ elections which are normally held by undemocratic regimes. Since mid twentieth century, the idea of democracy was very popular, to the extent that no state leaders dare to admit that their governments were undemocratic. Some of them cleverly camouflaged their dictatorship rule by declaring their own version of democracy such as presidential democracy, basic democracy, guided democracy, organic democracy, selective democracy and neo-democracy. They normally conducted elections in order to contain domestic oppositions or to reduce the international pressure. These scenarios are among the reason why certain requirement or standard of democratic election is vital.

Assessing elections is also significant in the process of democratisation and political reform. The findings of the assessment process are crucial in any genuine political reform. The process of assessing election can be conducted either through field work such as electoral observation, or through arm-chair academic research. A detailed and effective assessment tools enable interest parties to identify specific problems in the whole system. Besides that, a transparent process of electoral evaluation gives opportunity to the opposition parties and public generally to know the weaknesses of the electoral system. This opportunity will encourage people’s participation in the affairs of the state. In fact an effective process of assessing election shall reduce conflict between the government and the oppositions as both parties will only make their arguments based on authoritative fact and figures collected during the assessment process.

In fact there are many approaches in assessing elections. In IPU round table in 2004 for instance, three remarkable methodologies have been considered namely: (a) judging elections by their outcome; (b) judging elections by its process; and (c) judging elections by public international law. In fact all three approaches are significant in assessing election and they can be used concurrently. A more crucial question in assessing elections is not the approach, but the standard or guideline of elections that should be employed in the process.

The first attempt to systematically outline the standard of election had been made by a Dahl (1956), when he discussed the elements of democracy. He outlined eight different definitional characteristics of an electoral process and how its success can be assessed. This work on the general characteristic of electoral standard was followed by a more comprehensive discussion by Mackenzie, who set out the electoral standards and qualifications as an outcome of his experience as a visitor to East and Central Africa. These two classical works are useful in giving some insight on the quality of election, but inadequate to become a comprehensive standard for a free and fair election.

After the end of the Cold War, the discourse on the electoral standards for holding free and fair election becomes wider and more comprehensive in line with the process of democratisation particularly. It not only discussed by scholars, but more importantly, several international and regional organisations have attempted to elaborate the electoral standards through several pronouncements, handbooks, declarations or guidelines. These standards become important tool for electoral management bodies and legal drafters in exercise their administrative and legislative functions, as well as for electoral observers and political parties in evaluating quality of elections. As has been mentioned earlier, the phrase ‘free and fair’ now become the most popular one to describe the standard of elections. Therefore it is significant to examine the meaning and criteria of free and fair elections, particularly for the purpose of assessing election in Malaysia.

Generally, “free and fair elections” refers to periodic, genuine, clean, transparent, free and fair, competitive elections that in compliance with the principle of democracy, human rights and natural justice. A free election implies that all citizen including electors, parties, candidates and media enjoy all their fundamental rights. These rights including the freedom of expression, association, movement and assembly; freedom from intimidation and violence; freedom of access to and by electors to transmit and receive political and electoral information messages; freedom of access to the poll.

Fair election ensure that all candidates and parties to compete on a basis of equal and impartial treatment under the law and by the authorities. It also necessitates a level ‘playing field’ in enforcement election-related law, access to state facilities and media. Under this principle, there should be a clear separation between the state and political parties, and public facilities and resources should not be used unfairly to the benefit of one party. Fair election also protects all citizens’ rights to universal and equal suffrage; and rights to vote by secret ballot. The election management body should be credible, independent, non-partisan and should be able to conduct their affairs with impartiality and a maximum of transparency.

In assessing the standard of election, one should not neglect the original purpose of conducting elections. Generally elections are held to form government on the basis of the will of people through ballot boxes, and to allow people electing their political representative. Successful election, must not only legitimate, but also effective and capable of establishing a stable, functioning and coherence government. This is among the reason why the idea of freeness and fairness must be balanced with the need to have a stable government. Therefore, a suggestion to have general election be held annually, for instance, cannot be accepted even though it offers a better freedom for people. This is because such implementation of such idea would unnecessarily waste the state funds, create unstable government and jeopardise the function of election itself.

Apart from the question of ‘free and fair’ and political coherence, there are also several other factors that need to be considered in judging elections. The relevant factors such as social structure, historical background, financial issue, public security and prevention of electoral fraud undeniably influence the process of assessing elections.

 

METHODOLOGY

This research is generally a legal research using both approaches i.e. doctrinal research and socio-legal research. Legal research refers to any systematic study of legal rules, principles, concepts, theories, doctrines, decided cases, legal institutions, legal problems, issues or questions or a combination of some or all of them (Anwarul Yaqin, 2007). In this research, the study focuses on the concept of free and fair elections with special reference to the constitutional and legal provisions that form the current electoral system in Malaysia namely FPTP. In order to identify issues and problems relating to the implementation of first-past-the-post (FPTP) system in Malaysia, the researchers will adopt socio-legal research approach based on exploratory and evaluation method in order to clarify and define the problems and to assess the effectiveness of the FPTP system. The data will be collected through semi-structured interviews involving election management personnel, leaders of political parties, election observers, leaders of non-governmental bodies, and academicians. Apart from that, the researchers will use doctrinal legal research to assess the implementation of FPTP in Malaysia based on the concept of free and fair elections, and to examine the suitability of other electoral system such as Proportional Representation (PR) and Single Transferable Vote (STV) in Malaysia. Most of the studies under this part will be essentially a library-based exercise. The important resources will include official documents, law reports, statutes, parliamentary hansards, textbooks, digests and international official and non-official reports. In examining the implementation of FPTP based on the concept of free and fair elections, the researchers will work based on analytical and critical studies approach. It will involve a careful examination and evaluation on the implementation of FPTP including the critical components of it such as delimitation of electoral boundary, party system and electoral process. Besides that a comparative study between different election systems will be conducted to analyze the suitability of the systems in Malaysian context.

 

MEMBERS OF THE PROJECT

  1. Dr Muhammad Fathi Yusof (Project Leader)
  2. Assoc Prof. Dr Farahwahida Mohd Yusof
  3. Ust Wan Ali Wan Jusoh
  4. En Shafie Abd Rashid
  5. Dr Mohd Al-Ikhsan Ghazali
  6. Dr Mazlan Ali

 

LIST OF REFERENCES

Alan Wall et. al. 1994. Electoral Management Design (Stockholm: International United Nations Centre For Human Rights, Professional Training Series No.2 Human Rights and Elections: A Handbook on the Legal, Technical and Human Rights Aspects of Elections. UN doc HR/P/PT/2.

Andrew Reynolds et. al. 2005. Electoral System Design (Stockholm: International Institute for Democracy and Electoral Assistance)

Andrew Reynold & Ors. 2005. Electoral system design: The new International IDEA Handbook, (International Institute for Democracy and Electoral Assistance, Sweden)

Anthony H. Birch. 1971. Representation, (Macmillan, London)

Clive S. Kessler. 2005. “A Proposal for a Preferential Voting System”, in Elections and democracy in Malaysia, edited by Mavis Puthucheary & Noraini Othman (Bangi: Penerbit UKM)

David Beetham et. al. 2005. Assessing the Quality of Democracy: A Practical Guide Declaration of principles for international election observation, Commemorated on October 27, 2005, at the United Nations, New York

David Beetham. 2005. Democracy: A beginner guide (Oxford: Oneworld Publications)

Election Observation Handbook (Fifth edition) (Warsaw: OSCE Office for Democratic Institutions and Human Rights, 2005)

Guy S. Goodwin-Gill. 1994. Free and fair elections, 1st ed. (Geneva: Inter-Parliamentary Union)

International Electoral Standards: Guidelines for reviewing the legal framework of Elections (Stockholm: International Institute for Democracy and Electoral Assistance, 2002)

Johan Saravanamuttu, et al. 2014. “Introduction: The Electoral System’s Impact on Outcomes” In Coalitions in Collision: Malaysian 13th General Election, edited by Johan Saravanamuttu (Singapore: Institute of Southeast Asian Studies)

John Pepall. 2016. First-Past-the-Post: Empowered Voters, Accountable Government. (Fraser Institute: Toronto)

Mavis Puthucheary & Noraini Othman. 2003. Electoral system in Malaysia: a report (Bangi: IKMAS UKM)

Michael D. Boda. 2005. Revisiting free and fair elections (Geneva: Inter-Parliamentary Union)

Noraini Othman. 2005. “An Agenda for Reform: The Electoral System and Prospacts for Democratisation”, in Elections and democracy in Malaysia, edited by Mavis Puthucheary & Noraini Othman (Bangi: Penerbit UKM)

Rafael López-Pintor. 2000. Electoral Management Bodies as Institutions of Governance (New York: Bureau for Development Policy, United Nations Development Programme)

Richard S. Katz. 2005. “Democratic Principles and Judging Free and Fair”, In Revisiting free and fair elections, edited by Michael D. Boda (Geneva: Inter-Parliamentary Union)

Robert A. Dahl. 2000. On democracy (Yale: Yale University, 2000)

Susan A. Banducci & Jeffrey A. Karp. 1999. “Perception of Fairness and Support for Proportional Representation,” Political Behavior, Vol. 21, No. 3, 1999.

The Inter-Parliamentary Union. 1994. Inter-Parliamentary Council (154th session). Declaration on Criteria for Free and Fair Elections (Paris, 26 March 1994)

Wong Chin Huat. 2014. “Free and Fair Election,” in Malaysia Human Rights Report 2013, (Suaram: Kuala Lumpur, 2014) at 178.

Yonhyok Choe, Staffan Darnolf. 2000. “Free and fair election: What do we mean and how can we measure them?” In Election and democracy in Southern Africa, edited by H. Kotze, and B.E. Rash, (Oslo: Norwegian Institute of Human Rights, 2000)