Malaysia: A New Hope (And Some Legal Issues That Came With It)

Last Updated: 12 September 2018
Article by Nimalan Devaraja

May 9, 2018. A day that will be forever etched in the memories of Malaysians who witnessed the 14th General Elections ("GE14"). It was the day on which Malaysians witnessed, for the first time since the country's independence, a change in government. The 61-year-old Barisan Nasional coalition (and its predecessor, the Alliance Party), long synonymous with Malaysia, were ousted from power by the barely two-year old Pakatan Harapan coalition.

While we have witnessed with excitement or trepidation (depending on who is asked) the rise of interesting (and possibly controversial) developments in the Malaysian fabric since the change of government, the period leading up to, and immediately after, GE14 was also not without its share of dramatic events. This article discusses several notable events that took place during this period.

1 MALAYSIAN-1 VOTE?

Delineation is the process of dividing the Federation of Malaysia into Federal Constituencies (222 as of now) and the further division of those Federal Constituencies into State Constituencies (save for the 13 Federal Territories Constituencies) for the purpose of conducting elections.

Article 113(2) ("Article 113(2)") of the Federal Constitution ("FC") mandates the Election Commission ("EC") to review the division of the Federal and the State constituencies and recommend such changes as may be necessary to comply with the provisions of the Thirteenth Schedule of the FC ("Thirteenth Schedule").

On 28 March 2018, a mere six weeks before GE14, the Dewan Rakyat (House of Representatives) approved, by the requisite simple majority, a re-delineation report prepared by the EC. The report had been finalised after the EC had issued two redelineation proposals, the first in September 2016 and the second in January 2018. The re-delineation report that was approved was controversial for at least two reasons. First, from a timing perspective, it was tabled and approved in the Dewan Rakyat within one day, giving little time for debate notwithstanding the importance of the subject.

Second, the EC's recommendations in the report significantly increased the disparity in the number of voters in some constituencies. For example, the number of voters in the Damansara Federal Constituency increased by 76.16% from 85,401 voters in the previous general election to 150,439 voters for GE14. In comparison, the Sabak Bernam Federal Constituency had 37,126 voters for GE14. This means that a voter in Sabak Bernam has a vote which is equivalent to 4.05 times of a voter in Damansara. The report came under heavy criticism from civil society on grounds that it exacerbated the malapportionment, seemingly in favour of the government of the day.

Critics of the re-delineation report argued that the report went against the principle of "1 Malaysian-1 Vote", i.e. that each constituency should have an equal number of voters to allow for equal representation in government. It was also alleged that it did not comply with the guiding principles for re-delineation set out in the FC. We will now take several steps back to consider whether there is any legal basis for these allegations.

When the FC was first introduced on 31 August 1957, the parameters for a re-delineation exercise were set out in Article 116. Article 116(4) of the FC, among others, provided that the number of voters in each constituency shall be approximately equal after making due allowance for the distribution of the different communities and for differences in population density and means of communications but that such allowance shall not exceed 15%.

Article 116(4) was repealed and the parameters governing a re-delineation were transferred to a new Thirteenth Schedule pursuant to the Constitution (Amendment) Act 1962. The new Section 2(c) of the Thirteenth Schedule, among others, provided that the number of voters within each constituency ought to be approximately equal except that, having regard to the greater difficulty of reaching electors in the rural 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 constitute as little as one half of the electors of any urban constituency". This was the start of the erosion of the "1 Malaysian-1 Vote" principle as the permitted allowance of deviation had been significantly increased.

In 1973, the words "to the extent that in some cases a rural constituency may constitute as little as one half of the electors of any urban constituency" were removed from Section 2(c) pursuant to the Constitution (Amendment) (No. 2) Act 1973. This amendment meant that the EC was free to assign such weightage as it deemed fit to rural constituencies without any clear-cut limitation to the exercise of its discretion.

It therefore can be seen that from the outset, the idea "one person – one vote" was not an absolute principle enshrined in the FC as variances were permitted to give weightage to rural constituencies. However, there was, at the birth of Malaysia, an inbuilt safeguard to limit the difference in the number of voters between constituencies to ensure some measure of equality to the power of "one vote" of Malaysians. Unfortunately, this safeguard was removed 45 years ago by the constitutional amendments of 1973.

Even if one accepts that the EC now has unfettered discretion to determine the weightage to be assigned to rural constituencies, it is clear that the significant increase (76.16%) in the number of voters in the Damansara Federal Constituency from the previous general election has unjustifiably increased the difference in the number of voters between that constituency and the Sabak Bernam Federal Constituency, both of which are situated in the State of Selangor. This gives credence to the arguments that the re-delineation report has exacerbated the malapportionment contrary to the envisioned objectives of the exercise.

While it is impracticable for remote rural constituencies to have the same number of voters as some densely populated urban constituencies due to geographical and accessibility limitations, the "1 Malaysian–1 Vote" principle may become slightly closer to reality if the FC is amended to reinstate a permitted variance between these types of constituencies.

As Article 113(2) prescribes an interval of not less than eight years between the completion of one re-delineation review and the commencement of the next review, the next review under that provision can only be commenced in March 2026. Alternatively, the Government may trigger a review under Article 113A of the FC by increasing the number of members in the Dewan Rakyat, which has remained at 222 since 2003. As the number of registered voters has increased by approximately 36% since then, it may now be appropriate to increase the number of members in the Dewan Rakyat. However, this will require the support of not less than two-thirds of the members of the Dewan Rakyat and the Dewan Negara (Senate) as it entails an amendment to Article 46 of the FC.

RM 1,999 < RM 2,000

Chua Tian Chang, better known as Tian Chua, is a feisty politician. Among the many exploits that brought him fame or infamy, depending on which way one looks at it, was a sit-down protest before a water cannon truck of the riot police, reminiscent of scenes from the protests in Tiananmen Square, biting a policeman and most recently, uttering expletives at a police officer.

Arising from the most-recent incident, Chua was charged and convicted in the Sessions Court for outraging the modesty of a person under section 509 of the Penal Code. Chua was sentenced to a fine of RM3,000, which would have resulted in his disqualification as a Member of Parliament under Article 48(1) (e) of the FC ("Article 48(1)(e)"). On 2 March 2018, on Chua's appeal, the High Court reduced the sentence to RM2,000 which appeared to allow him to avoid disqualification under Article 48(1)(e), and clear the path for him to contest in GE14.

However, Chua was in for a rude shock on nomination day when the returning officer ("RO") rejected his nomination paper as a candidate for the Batu Federal Constituency where he had emerged victorious in the last two general elections. The reason for the disqualification, as reported in the media, was because the RO took the view that notwithstanding the reduction of Chua's fine to RM2,000, Chua was still disqualified. The RO relied on regulation 7(1)(c) of the Elections (Conduct of Elections) Regulations 1981 which, among others, requires the RO to reject the nomination paper of any candidate on grounds that the candidate is disqualified from being a member of the Dewan Rakyat under the FC.

Article 48(1)(e), the constitutional provision which lies at the heart of this conundrum, disqualifies a person from being a Member of Parliament if he has been convicted of an offence and sentenced to imprisonment for a term of not less than one year or to a fine of not less than RM2,000. Thus the question is whether "a fine of not less than RM2,000" includes or excludes a fine of RM2,000.

From a literal reading of Article 48(1)(e), it seems that a fine of RM2,000 would disqualify Chua from contesting in GE14. However, those in Chua's camp relied, not on a plain reading of the provision, but instead on the Supreme Court case of Public Prosecutor v Leong Yee Ming [1993] 2 CLJ 143. In that case, Gunn Chit Tuan CJ (Malaya) upheld the prosecution's appeal against the decision of the High Court to grant bail to a person charged under Section 39A(2) of the Dangerous Drugs Act 1952 ("DDA") despite Section 41B of the DDA prohibiting bail from being granted for offences punishable with imprisonment for more than five years. Gunn CJ (Malaya) considered that the words "be punished with imprisonment for life or for a term which shall not be less than five years" in Section 39A(2) of the DDA clearly and unequivocally meant that the offence is punishable with imprisonment for more than five years i.e. five years and one day up to a maximum imprisonment for life, and therefore the offence was non-bailable.

The decision in Leong Yee Ming was relied on by the High Court in Chua Tian Chang v Pendakwa Rakyat (Rayuan Jenayah No: 41- 175-2009), where Chua had appealed against his earlier conviction for biting a police officer. While upholding the conviction, the High Court Judge reduced the fine imposed on Chua from RM3,000 to RM2,000, after taking into consideration the fact that Chua would be disqualified as a Member of Parliament if a higher fine was imposed on him. According to the Judge, the amount of RM2,000 stated in Article 48(1)(e) was just a guideline which would not cause Chua to lose his eligibility automatically, an event which would only occur if the fine was for RM2,001 and above. This position was also relied on by the High Court Judge in Chua's most recent conviction.

Chua's attempt to salvage the situation by filing a suit in the High Court on 2 May 2018 to seek a declaration that he is entitled to contest in GE14 and that his nomination for the Batu Federal Constituency be accepted was unsuccessful as the Court ruled on 4 May 2018 that the challenge should be by way of an election petition pursuant to Article 118 of the FC.

Chua initially appealed against the High Court decision but subsequently withdrew the appeal. According to Chua's counsel, his client proposes to commence new court proceedings to clarify whether he is eligible to stand for future elections and will not challenge the results of the elections in the Batu Federal Constituency which was won by Chua's newly adopted 'protégé',

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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