Wednesday, January 14, 2015

Why S'wak redelineation is unconstitutional

2:22PM Jan 14, 2015
By Wong Chin Huat

COMMENT Contrary to the understanding of the Election Commission (EC) and many politicians on both sides of the divide, the electoral constituency redelineation process is not to be dictated by the EC and parties it involves with in behind-the-scene negotiations.

The EC is just the proponent of the redelineation plan (termed “recommendation” in thefederal constitution), which is to be ultimately approved by the Parliament (Dewan Rakyat), after members of the public scrutinise and provide feedback or objections (termed “representation”) on the EC’s plans.

1   What does the federal constitution’s 13th Schedule say?

All these are stipulated in the 13th Schedule of the federal constitution.

1.1     What is to be on display?

Section 4 of the 13th Schedule stipulates that
“Where the Election Commission have provisionally determined to make recommendations under Clause (2) of Article 113 affecting any constituency, they shall inform the Speaker of the House of Representatives and the Prime Minister accordingly, and shall publish in the Gazette and in at least on newspaper circulating in the constituency a notice stating -

(a) the effect of their proposed recommendations, and (except in a case where they propose to recommend that no alteration be made in respect of the constituency) that a copy of their recommendations is open to inspection at a specified place within the constituency; and

(b) that representations with respect to the proposed recommendations may be made to the Commission within one month after the publication of such notice,
and the Commission shall take into consideration any representation duly made in accordance with any such notice.”

1.2   Who can object?

Who are the stakeholders qualified to make “representations” in this short one-month period? Section 5 defines them to be:

“(a) the state government or any local authority whose area is wholly or partly comprised in the constituencies affected by the recommendation; or

(b) a body of one hundred or more persons whose names are shown on the current electoral rolls of the constituencies in question”

What happens after submission of representations? The EC is supposed to organise “local enquiries”, in which “the Election Commission shall have all the powers conferred on Commissioners by the Commissions of Enquiry Act 1950”, as stipulated by Section 6.

In other words, these inquiries are meant to be of the same rigour with those called by royal commissions of inquiries (RCIs). They are not meant to be public relations shows.

1.3   What are the grounds for objections?

Now, on what grounds can state governments, local governments and groups of 100 or more affected voters raise objections?

This is clearly stipulated in Section 2:

“The following principles shall as far as possible be taken into account in dividing any unit of review into constituencies pursuant to the provisions of Articles 116 and 117 -

(a) while having regard to the desirability of giving all electors reasonably convenient opportunities of going to the polls, constituencies ought to be delimited so that they do not cross State boundaries and regard ought to be had to the inconvenience of State constituencies crossing the boundaries of federal constituencies;

(b) regard ought to be to the administrative facilities available within the constituencies for the establishment of the necessary registration and polling machines;

(c) the number of electors within each constituency in a state ought to be approximately equal 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;

(d) regard ought to be had to the inconveniences attendant on alterations of constituencies, and to the maintenance of local ties.”

Conditions in 2(a) and 2(b) have never been violated because that serves no parties’ interests. The key contentions are always with the compliance of sub-sections 2(c) and 2(d).

The phrase “approximately equal” in Section 2(c) invalidates malapportionment except for the ground of “greater difficulty of reaching electors… and other disadvantages facing rural constituencies”, which basically means transportational and communicational challenges.

The phrase “maintenance of local ties” then invalidates gerrymandering. The EC cannot simply break up local communities and put people with little commonalities into a constituency.

2    What information is constitutionally needed in the redelineation display?

To allow for public feedback – by state and local governments and affected voters – as per Sections 2, 4 and 5, clearly the EC’s redelineation proposal must contain sufficient information for the following tasks to be possible.

By definition, redelineation is simply re-organising voters into new geographical divisions, corresponding to new arrangements in electoral roll.

Technically, electoral maps show three layers of division: parliamentary constituency, state constituency and polling district (housing estates, villages, etc). This corresponds to the organisation of voters in electoral rolls, with one more layer, namely, locality (streets, apartments, etc).

The parliamentary constituency, state constituency and polling district have their code numbers.

For example, polling district Rajang Park where Najib made his infamous “you help me, I help you” offer is currently coded as 2124801, which stands for P212 Sibu (parliamentary constituency), N48 Pelawan (state constituency) and 01 Rajang Park (polling district).

2.1 “The effect”

“The effect of (the EC’s) proposed recommendations” as stipulated in Section 5(a) is therefore not just a state-wide map of Sarawak divided into 31 parliamentary constituencies and 82 state constituencies, and a list of voter numbers in each of the parliamentary and state constituencies and polling districts. That is “recommendations”, not the “effects”.

The “effects” mean “changes” or “differences” between the proposal and the status quo. The “effects” can be known from:

(a) An exhaustive list of changes to the geographical boundaries and areas (in square kilometres) of polling districts, state constituencies and parliamentary constituencies;

(b) Constituency maps – in the same format as those used in elections – with the proposed boundaries overlaid on polling district, administrative, physical and infrastructural boundaries: and

(c) “Proposed” electoral rolls to be used should the redelineation proposal be accepted.

2.2     Affected Voters

The voter can only know if he or she is affected by first knowing which constituency he/she is in and with whom he/she will share the constituency. Without the “proposed electoral roll” and the detailed maps, he/she cannot ascertain this.

2.3    Malapportionment

Assessing if all constituencies in the state are “approximately equal”, one needs only the electorate size of parliamentary and state constituencies. To assess if the malapportionment is constitutionally compliant, namely if there is no alternative to avoid excessively small constituencies, one  would need on-map information. Information on landmass of constituencies also helps to ascertain the need for under-sized constituencies.

2.4    Gerrymandering

To mount a reasonable challenge to suspected cases of gerrymandering which violates the “maintenance of local ties” condition under Section 2(d), one must have the detailed maps and electorate size up to the polling district level.

Without sufficient information listed as in Table 1 above, the voters will not be able to effectively participate in the redelienation process. One day they are not supplied with the necessary data and map, one day in the precious one-month period is wasted.

Tomorrow: Part II - Information the EC is holding back

WONG CHIN HUAT earned his PhD on the electoral system and party system in West Malaysia from the University of Essex. He is a fellow at the Penang Institute, and a resource person for electoral reform lobby, Bersih 2.0.
~ Malaysiakini

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