Annulled Redelineation Exercise
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**First Published via Malaysiakini on 2nd March 2023 and 3rd March 2023
Part 1
Unfair electoral boundaries remain an unaddressed contentious issue in Malaysia. While we are very accustomed to terms like malapportionment and gerrymandering and having unfair redelineation exercises bulldozed through, I would like to open your eyes to a rare peculiarity in the redelineation process. Since 1957, we had outcomes of three redelineation exercises either annulled or withdrawn before the boundaries were used for elections. These redelineation exercises provided useful lessons on how to advocate redelineation process correctly.
There are few principles one must understand about redelineation. The drawing of electoral boundaries has two major components – apportionment (the process where seats in a legislative body are distributed among administrative divisions like states) and redelineation (drawing those seats). Up to 1973, EC had the powers to apportion (with exception of areas under Sabah and Sarawak) and to redelineate constituencies. Up to 1962, EC had the full powers to redelineate without interference of Prime Minister and Parliament. Today, EC is reduced to a mere consultant for redelineation. Redelineation exercises are done separately for Malaya, Sabah and Sarawak. With these in mind, we shall explore 1960, 1973 and 1992 Redelineation exercises in this two-part series.
Fairness: 1960 Malayan Redelineation Exercise
Our Merdeka Era Constitution presented the best template for the formation of fair boundaries. This paved way for what could be the last fair redelineation exercise in Malaysian history.
The Constitution made it clear that one of three responsibilities of EC was to delimit (alternate word of redelineate) constituencies of Dewan Rakyat and Dewan Undangan Negeri (DUN) (original Article 113 (1)). Article 114 stated the appointments for membership of EC (i.e. commissioners) “shall have regard to the importance of securing an Election Commission which enjoys public confidence”. Our original Article 46 only defined the total members of Dewan Rakyat and this allowed for EC to allocate parliamentary constituencies for every state. Our original Article 116 had clauses (3) (4) (5) which defined the limits on disparity of constituency electorate sizes and set the expectations for voters of every state to be treated equally. As per Article 116 (3) (4) (5), EC has to calculate Electoral and Population Quota of the State and Federation. Electoral Quota (EQ) is defined as the division of number of electors by total number of constituencies of a state/Federation. EC has to first apportion parliamentary constituencies to different states with dual consideration of population and electorate size. At the state level, EC has to calculate the EQ uniquely for the state and no constituency shall have an electorate size exceeding +/-15% of EQ. Constituencies are drawn with consideration of distribution of different communities, densities and means of communication.
When Malaya became independent in 1957, Article 46 stated that the total number of first Dewan Rakyat members shall be 104 and subsequently be 100 until the next census. Article 171 (repealed in 1963) determined the number of DUN constituencies for every state (only applicable for first state elections after Merdeka). The independent EC carried out the 1958 redelineation to comply the requirement of 104 Dewan Rakyat and 282 DUN constituencies for the first post Merdeka elections. In line with Article 46, EC carried out the 1960 redelineation exercise for the slightly shrunken Dewan Rakyat size of 100 and Article 171 no longer applies.
EC made efforts to ensure the apportionment process enables equal voting strength of electors throughout Malayan states. As the Dewan Rakyat shrank from 104 to 100, some states gained Parliamentary constituencies (Penang and Malacca) and some lost Parliamentary constituencies (Perak, Negeri Sembilan, Johor, Pahang and Terengganu) due to population and electoral count
Since equalization of electoral constituencies must be made concurrently for Parliamentary and DUN constituencies (and Parliamentary and DUN constituencies are geographically related), EC explicitly advocated the principle of simple multiple. This principle (implied in the 1957 Constitution, codified in 1962 and repealed in 1983) stated the number of DUN constituencies shall be the same or multiple of number of Parliamentary constituencies of a given State. For example, Perak will have 19 Parliamentary Seats and EC suggested Perak State Government to amend the state constitution to state 38 DUN seats (19×2). The 1960 redelineation report turns out to be a loud advocate of this principle. With the exception of Perak and Johor, all states witness either a small increase or no change for the DUN seats.
Moving from apportionment, EC delineated constituencies with some major principles. Racial differences shall not be a consideration for delineation. EC even aspired constituencies to be racially mixed and ‘typical’ of the Federation where possible. Moreover, travelling distances particularly for electors to cast their votes shall be short as possible. All parts of the constituency are easily accessible from a central place for the purposes of elections and service work of future elected representative (for his/her future travels). EC explicitly mentioned that it is not possible to have electoral boundaries to coincide with administrative boundaries. No Constituency is to be separated by a mountain range, arm of sea or area of inaccessible jungles.
In order to meet the requirements of equalization and ability of voters to cast their votes with ease, EC directed that the Polling Districts – building blocks of constituencies – of over 1500 electors (rural areas) and 3000 (urban areas) to be broken down. This ensures these building blocks can facilitate the formation of constituencies that are within +/-15% of EQ. Polling districts were closely related to population distribution and considerations of polling stations were taken into account.
The 1960 redelineation exercise resulted in a small disparity gap between largest and smallest Parliamentary constituencies (electorate size). The largest constituency (Pasir Puteh, Kelantan) was 1.5 times larger than smallest constituency (Malacca Tengah, Melaka). While there were clear requirements to adhere deviation limits of +/-15% of EQ, unfortunately EC drawn 10 DUN constituencies that were oversized or undersized.
With some exceptions, the above exercise has shown valuable learnings to form fair electoral boundaries. Majority of the lessons correspond to Tindak Malaysia’s stance on redelineation.
The outcome of the 1960 redelineation exercise alarmed the ruling government. The ruling government tried to remove the independent EC Chairman (but failed), made constitutional amendments that eroded EC’s independence and annulled the 1960 redelineation exercise. Dewan Rakyat seat count (in 1962) was reinstated to 104 members, strict equalization criteria were removed and EC lost final powers on redelineation exercise. The 1960 redelineation exercise was mentioned briefly in the 1984 Malayan redelineation report but nowhere to be found on EC’s website. Furthermore, any determination of next redelineation cycle made no reference of the 1960 redelineation exercise (Article 113 (7), (8)).
1960 Redelineation Exercise remains the last fair redelineation exercise where all voters among and within states of Malaya were treated equally.
Conclusion
We can see that an independent EC and robust constitutional principles are two foundations for fair boundaries in Malaysia. In the second part of the series, we will continue our study of the 1967-69/71-73 and 1992 redelineation exercises. We delve more deeper on the implications of 1962, 1973 and 1984 constitutional amendments on next redelineation exercises.
DANESH PRAKASH CHACKO is a Research Analyst working on applying mapping technologies to various Sustainable Development Goals (SDG) projects in Sunway University. He is also the director of the electoral reform group Tindak Malaysia.
Part 2
In Part 1 of the series, we examined the possibility of fair redelineation exercise and how it got annulled. Subsequent 1962, 1973 and 1984 constitutional amendments diluted the concept of equality of voting strength, reduced EC powers in some areas and allowed EC not to comply redelineation principle. However, some of the amendments of 1962 and 1984 were responsible for laying the grounds for the next two redelineation exercises getting annulled or withdrawn.
Unused Redelineation Exercise: 1967-69/1971-1973 Malayan Redelineation Exercise
Before 1984, EC was tasked to carry out redelineation exercise after 8 – 10 years from the previous redelineation exercise. Since the first redelineation took place in 1958 (for Malayan side), next redelineation exercise was schedule no earlier than 1966. There are few things we need to be aware for this exercise. EC has lost its final authority on electoral boundaries. Final power to enforce boundaries have been transferred to Parliament in 1962. 13th Schedule was introduced in 1962 to guide the principles of drawing the electoral boundaries (replacing Articles 116 (3), (4) and (5). One of the principles was vaguely worded definition to contain malapportionment. 13th Schedule 2 (c) states “the number of electors within each constituency ought to be approximately equal throughout the unit of review (for this instance, States of Malaya) 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, to the extent that in some cases a rural constituency may contain as little as one half of the electors of any urban constituency”. Together with Article 46 (which was silent back then on assigning parliamentary seats to each state), this clause allows EC to carry out apportionment and redelineation together. In 1962, principle of simple multiple was codified in 8th Schedule where the DUN size is the same or multiple of parliamentary seats of a state.
In 1966, EC asked Federal Government whether there were changes to overall Dewan Rakyat size. Federal government responded in 1967 that there will be no changes and existing allocation 104 members of States of Malaya remains (stipulated by the 1962 amendments). EC commenced works on redelineation exercise in 1967 (for Malayan side) and in 1968, proposed boundaries were up for public consultation.
As EC had the power to apportion parliamentary seats and suggest the DUN size (to enforce principle of simple multiple), EC proposed addition and deletion of parliamentary seats throughout States of Malaya (to comply with interstate equalization principle). Kedah, Penang and Selangor were set to gain one new parliamentary seat each, Negeri Sembilan was to lose one parliamentary seat and Johor was to lose two parliamentary seats. For DUN level, Kedah and Selangor were to gain two DUN seats, Penang three new DUN seats and Negeri Sembilan one new DUN seats. Johor was to lose four DUN seats. Significant boundary changes were done for the seats together with name changes.
There are two major lessons from this exercise. The vaguely worded definition for malapportionment limits is up for multiple interpretations (e.g. +/-30 of Electoral Quota (EQ), +/-33% of EQ). By analyzing the first proposal of the redelineation exercise, parliamentary constituencies were drawn within +/-33% of state EQ. However, the definition of 13th Schedule 2 (c) made no reference of any state EQ. As matter of fact, the definition is insisting equalization of constituencies throughout the states of Malaya. Once the analysis covers the entire range of parliamentary constituencies of Malaya, smallest seat was 66.43% of national EQ to 142.72% of EQ. In no way, EC was breaking the constitutional rules as the definition was very vague. In short, this version of 13th Schedule 2 (c) should not be the basis of fair malapportionment limits in Malaysia.
This redelineation exercise was suspended in 1969 due to 1969 elections and 1969-1971 Emergency. Once the constitutional order was restored, redelineation exercise resumed in 1971 and with changes of 3 EC Secretaries, redelineation report was finalized in May 1973. As per Section 9, Part II of 13th Schedule, redelineation report was presented to Prime Minister. The next step was for Dewan Rakyat to approve it. However, Dewan Rakyat passed legislation to increase parliamentary seats of States of Malaya from 104 to 114. The same legislation nullified the effects of 1973 redelineation exercise. The same legislation ended EC’s ability to apportion as Dewan Rakyat stipulated the count of parliament seats for every state. The lesson from this exercise is not to have a politicized body to be final approver of electoral boundaries
The 1967-69/71-73 Redelineation Exercise remains the last attempt by EC to apportion seats throughout states of Malaya and hence, an attempt to treat voters of different states equally.
Withdrawn Redelineation Exercise: 1992 Malayan Redelineation Exercise
In 1984, major constitutional changes were made in relation to redelineation. The upper 10-year limit for the next redelineation exercise was removed. A new subclause was added – Article 113 (3)(a) where redelineation could be triggered earlier (before the 8 years lapsed from past redelineation) if the Dewan Rakyat or DUN seat count were altered. The same subclause allowed EC to modify the contents of 13th Schedule as it thinks necessary for the early redelineation exercise. However, the amendments were silent on how redelineation should be done if Dewan Rakyat or DUN seat count changed after 8 years from the previous redelineation exercise. On 8th November 1984, the 1984 redelineation exercise for Malaya (including newly created Labuan) was completed (when the redelineation report was tabled to the Prime Minister).
On 21st October 1992, Dewan Rakyat passed the legislation to increase the number of Dewan Rakyat Seats for States of Malaya (Act A837). This Act was to take effect from 20th November 1992 and instructs EC to carry out redelineation exercise in line with Article 113 (3)(a). Article 113 (3)(a) is meant for early redelineation that takes place if the composition of Dewan Rakyat or DUN changed before the next redelineation cycle. On 9th November 1992, the minimum of 8 years has lapsed since the 1984 redelineation exercise. On 26th November 1992, EC issues a public notice that their first round of redelineation proposal is up for review.
In December 1992, Attorney General Chambers informs EC that redelineation exercise being conducted is in collision course with the existing laws. It was found the 1992 redelineation exercise should not be using Article 113 (3)(a) but instead follow standard redelineation principles laid in Article 113 (2). On 11th February 1993, EC withdrawn its redelineation review notice and official reason for the withdrawal was technicality. Meanwhile, DAP filed legal proceedings to stop the redelineation exercise on three grounds: constitutional violation, going against the principle of one person one vote and lack of independence of EC. According to Lim Kit Siang, the said legal action compelled EC to cancel the exercise to prevent public expose in the courts.
On 7th June 1993, Dewan Negara passed the legislation to address the redelineation approach where composition of Dewan Rakyat/DUN changes after 8 years have lapsed from the previous exercise. Act A849 was passed where a new subclause – Article 113 (3)(b) was introduced. If the composition of Dewan Rakyat or DUN alters after the 8 years lapsed from past redelineation exercise, EC is to carry out a redelineation exercise of the areas affected by alteration of the composition in line of Article 113 (2). Article 113 (2) refers to the redelineation exercise carried out no less than 8 years of the previous exercise and such redelineation exercise should create constituencies to follow 13th Schedule. Act A849 was retrospectively came to effect from 20th February 1992. On 23rd July 1993,
EC issued public notice of the redelineation review (which reflects 1992 additions of Dewan Rakyat Seats and 1992-93 DUN seat additions). This redelineation exercise was completed in 1994.
The 1992 redelineation exercise might be the only redelineation exercise in Malaysia that was prematurely stopped. This exercise should be studied deeply as a template to prevent unfair redelineation exercise in future.
Conclusion
These three redelineation exercise (1960,1967-69/71-73, 1992) provide valuable lessons on framing the fair redelineation proposal, dangers of certain constitutional amendments and even a measure for a redelineation notice to be withdrawn. Among the exercise, 1960 redelineation exercise remains the best example on fair boundaries could be formulated. A redelineation exercise that is grounded on non-vaguely worded grounds and without political interference yields the fair constituencies for Malaysia just like it happened in 1960.
DANESH PRAKASH CHACKO is a Research Analyst working on applying mapping technologies to various Sustainable Development Goals (SDG) projects in Sunway University. He is also the director of the electoral reform group Tindak Malaysia.
