by GK Ganesan Kasinathan, Advocate and Solicitor, Kuala Lumpur
Is every vote of equal strength?
Does every vote, cast at any part of the nation, possess the same effect?
Let’s use the 2018 General Elections (GE–14) as an example.
The Kapar parliamentary constituency [P109] represents one seat in parliament. The Putrajaya constituency [P125] also represents one seat. What is the difference?
Kapar had, in GE–14, 124,983 voters. Putrajaya had 27,314 voters. So, comparing apple–to–apple, for a single parliamentary seat, Kapar had 4.6 times more voters than Putrajaya. One vote in Putrajaya was equivalent to 4.6 votes in Kapar. Two voters in Putrajaya could thus neutralise 9 voters in Kapar.
If we cross compare: Bangi [P102]in Selangor has 178,790 voters, but Igan [P207]in Sarawak, has 19,639. A single vote in Igan is good enough to cancel out 9 votes in Bangi.
Is this ’equality’? Is this a fair way to conduct elections? That is the question.
Equality in the Federal Constitution
Equality is guaranteed in the Malaysian Constitution in these words: ‘All persons are equal before the law and entitled to the equal protection of the law.’ (Article 8(1).
It applies to all situations, including that of elections. In elections, the principle of ‘equality’ has given rise to the long–held principle of ‘one person, one vote’. It means the value of every vote in each constituency must have the same value and strength as any other vote in every other constituency. That is a fundamental right.
To ensure that all votes are of equal strength, every parliamentary constituency should contain roughly the same number of voters.
Equality, Electoral Quota (‘EQ’), and the Reid Commission Report
The method by which constituencies are drawn, according to voter population, is by the use of a formula known as ‘Electoral Quota’. That was recommended by the Reid Commission and accepted by the representatives from Malaya — so much so that they adopted it into the constitution to safeguard it.
In 1957, the Reid Commission recommended the concept of equality. They formulated the equitable distribution of constituencies between each state, ‘on the basis of population and the electorate’. Once a certain number of voters were assigned to a constituency, the Commission proposed that ‘disparities among constituents’ must be limited ‘to no more than 15% deviation from the average constituent in each state’.
These principles were embedded into the Federal Constitution by three clauses in Article 116.
Article 116(5) defined what Electoral Quota was. The formula was: the total number of registered voters divided by the total number seats available in parliament. Art 116(5) read:
‘116(5)(a). ‘Electoral quota‘ means the number obtained by dividing the number of electors in the Federation or State by the total number of constituencies or, as the case may be, the number of constituencies in that State’.
Articles 116(3) and (4) were in these words: –
Article 116.(3) –
‘Constituencies shall be allocated to the several States in such manner that the electoral quota of each State is as nearly equal to the electoral quota of the Federation as it can be without causing undue disparity between the population quota of that State and the population quota of the Federation’.
Article 116.(4) –
‘Each State shall be divided into constituencies in such manner that each constituency contains a number of electors as nearly equal to the electoral quota of the State as may be after making due allowance for the distribution of the different communities and for differences in density of population and the means of communication: but the allowance so made shall not increase or reduce the number of electors in any constituency to a number differing from the electoral quota by more than fifteen per cent’.
When the UK monarch and the Malay Rulers consented to the Reid Commission Report, the UK Parliament drafted the new Federal Constitution on June 1957. The draft was presented, debated and enactedby the Federal Legislative Councilon August 15, 1957. We can assume that the Reid Commission Report forms the womb of the Federal Constitution.
The duly enacted Federal Constitution took effect on August 27.
Independence of EC
The Reid Commission stipulated that elections should be conducted by a body known as the Election Commission(‘EC’). They explained the work of the EC: ‘Before any elections can be held for the House of Representatives it will be necessary to delimit constituencies and to prepare electoral rolls for each constituency. We recommend that an independent Commission should have the duty and responsibility of carrying out these matters and of organising and conducting elections and that this Commission should be called the Election Commission and should consist of three members.’
The Commission said that the EC must be entirely free of Government influence and was to be appointed — and removed — by the King. They thought it crucial that the EC ought to be wholly independent: ‘We regard it as a matter of great importance that this Commission should be completely independent and impartial. We therefore recommend that the Election Commission should be a permanent body, that its members should be appointed by the Yang di–Pertuan Besar and should be persons whom all democratic parties and all communities have complete confidence. The independent position of its members should be recognised by providing that they can only be removed from office, in the manner provided with regard to a Judge of the [Federal] Court, and that their salaries cannot be diminished during their term of office but shall be a charge on the Consolidated Fund’. [para 71].
Such an EC would be entirely independent, and self–sustaining; it could not be oppressed by the Government.
And since there rights were anchored within the Constitution, it was thought the concept of equality as safe. It was not. So I ask you: do you have, as the Commission report says: ‘complete confidence’ in the EC? Good for you!
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