Sunday, May 26

Electing constitutional supremacy


THE Yang di-Pertuan Besar of Negeri Sembilan’s recent royal birthday address called for those in positions of authority to defend, protect and guarantee the independence of the national institutions of law, justice and administration, and that this also applies to the process of the upcoming general election.

Our Federal Constitution has nine articles and one schedule dedicated to elections to the Dewan Rakyat and state legislative assemblies, and even prospectively the Dewan Negara. The Elections Act and Election Offences Act further elaborate on the topic.

The Constitution creates the Election Commission, which should “enjoy public confidence”, and establishes the principles behind how it should determine the boundaries of constituencies, called ‘delimitation’ (often termed ‘delineation’). The number of voters within each constituency ought to be equal except for “a measure of weightage” for rural constituencies, and potential inconveniences and local ties should be regarded if constituencies are to be altered. Agreements made during the creation of Malaysia in 1963 established how many Dewan Rakyat seats Sabah and Sarawak should get: whether the proportion is fair is another bone of contention. Nothing in the law that says that voters’ race, religion or party affiliation is a legitimate basis (indeed, the term ‘political party’ is not mentioned: it is individuals who are elected).

Today, however, the EC is facing perhaps the greatest scrutiny it has encountered.  Objections to its latest delimitation exercise (under a formal process provided by the Constitution) are more numerous now than previously, and even legal action has been taken against the body on allegations of unconstitutional conduct. This is not indicative of public confidence. Both sides of the political divide claim that this is only happening for political reasons; so it is up to the EC to prove that it is being neutral. With Malaysia ranking a sad 125th out of 198 countries in the recently published World Electoral Freedom Index, the need for reform is great, but unfortunately the incentive remains slim.

While it is right for patriotic citizens to push the EC to abide by our Constitution, some activists seem to take a dim view of the constitutional rights of their compatriots.

This has been seen in responses to a movement advocating abstentions or spoilt votes. Amid accusations of “working for the other side” and all manner of insults, one of the more ignorant statements is “if you don’t vote, then you don’t have the right to complain”. Article 119 of our Constitution establishes how citizens are entitled (and not compelled) to vote; nothing says you have to vote in order to enjoy the rights of citizenship, including freedom of speech. Additional rights are not conferred by voting, and it is interesting to see those who normally oppose two-tier citizenship suddenly advocating it.

Ardent party supporters may argue that the Constitution itself is tattered, and will only be restored if their preferred coalition (under their presumably constitution-loving leader) comes into office. However, by failing to uphold its contents, they expose their own hypocrisy.

Firstly, it should not be assumed that abstentions are made frivolously. Indeed, one voter compared the dilemma to a version of the Trolley Problem. In this thought experiment, you imagine a train hurtling down a track that will kill five people, but you can push a fat man from an overhead footbridge onto the track to kill him instead, thus saving the five. Do you push the man? The purpose is to make you think about the ethical difference between acting so something bad happens (by pushing the man) versus letting something worse take its course (by doing nothing).

Many people refuse to push the man because they would feel personally responsible for his death. A similar logic motivates some of those refusing to vote, and their response to those saying “don’t complain” would be “you’ll be responsible if your guys win and screw us over”.

Furthermore, reducing the general election to a contest of coalitions and potential prime ministers overlooks the constitutional fact that voters are electing individual representatives: the quality of the candidates is thus paramount and one may criticise how parties allocate candidates like pawns. As seen since 2008, poor candidate selection makes representatives vulnerable to crossovers which brings its own damage to democracy.

The duties of the EC are clearly specified in the Constitution, but so are the rights of citizens in exercising their entitlement to vote. If advocates of reform believe in their cause, they should persuade, cajole and plead to convince others that their choice offers the best hope. But when they assume, belittle and insult the motivations of fellow citizens, they should be mindful of the freedoms that the same Constitution guarantees.

Tunku Zain Al-Abidin is founding president of Ideas.