That is best which works best


One of the major challenges of electoral systems is to determine how best to allot parliamentary seats to reflect the votes cast by the electors.

ALMOST every one is anticipating an early election. But two factors must be borne in mind.

First, under Article 55(3) of the Constitution, the Dewan Rakyat has a five-year tenure. The electoral mandate of Prime Minister Datuk Seri Abdullah Ahmad Badawi does not expire till 2009.

With 198 of the 219, or 90.4%, of the seats in the Dewan Rakyat, there is no legal or political reason for him to return to the people prematurely for a fresh mandate.

Second, the decision to dissolve the Dewan Rakyat prematurely does not rest with the Prime Minister alone. The premier can advise the Yang di-Pertuan Agong, but under Article 40(2) (b) His Majesty is not bound by this advice and may, in his discretion and wisdom, refuse the Prime Minister’s counsel on this matter.

Conventionally, of course, the King almost always accepts the Prime Minister’s advice. A sagacious monarch should follow conventions on a matter as political as the timing of a general election.

But commentates must observe the courtesy of acknowledging the Yang di-Pertuan Agong’s constitutional discretion in the matter.

Democractic pre-requisites: A genuinely democratic electoral process must posses the following salient features:

> Constitutional provisions for the existence, composition and tenure of legislative assemblies;

> An electoral system that translates votes into parliamentary seats;

> Impartial machinery for delineating and revising electoral constituencies;

> A system of universal adult franchise;

> A fair and impartial machinery for drawing up an electoral register;

> Legal rules for the eligibility of candidates;

> Legal rules for the nomination of contestants;

> Legal and conventional rules for the conduct of election campaigns;

> Safeguards for freedom of speech, assembly and association and for equal access to the media;

> A developed system of political parties;

> A competent and non-partisan administration to run elections and to supervise voting;

> Safeguards for secrecy of the ballot;

> An independent judicial mechanism to adjudicate election disputes; and,

> Provision for filling of vacancies.

This article will highlight one of the salient features above, namely, the first past the post electoral system.

One of the major challenges of electoral systems is to determine how best to allot parliamentary seats to reflect the votes cast by the electors. Two main types of electoral systems exist – the simple plurality system and the system of proportional representation.

Simple plurality system: The simple plurality, first-past-the-post system, is current in Malaysia, Britain and India.

The hallmark of this system is that constituencies are single-member constituencies and a candidate with the largest vote wins the electoral district, even if those who endorse him do not constitute an absolute majority of the electors. This system is built on a number of fundamentals.

First, each voter is entitled to only one vote. Second, constituencies are approximately equal in population size so that each vote carries approximately the same value.

Third, all constituencies are single-member constituencies so that there are as many electoral districts as there are seats in the elected chamber: Articles 116(2) and 117. This is in contrast with multi-member constituencies in many countries, including Singapore.

Fourth, only one ballot is held and the candidate obtaining the most votes is declared elected. There is no requirement that the winner must obtain more than 50% of the votes polled. The candidate with the largest vote a (a simple plurality) wins.

The great advantage of the single member, first-past-the post system is that it produces a clear winner; it provides political stability; it reduces the number of political parties represented in Parliament.

The great disadvantage of this system is that in three- or four-cornered contests, a very large number of “winners” do not secure an absolute majority in their constituencies.

In Malaysia one-third – and in Britain, up to one-half – of the candidates do not obtain a clear majority in their constituencies. This casts a doubt on the legitimacy of their mandate.

In addition to non-representative outcomes in individual constituencies, the simple plurality system permits a massive disparity at the national level between the percentage of votes polled and the percentage of parliamentary seats won.

In Britain in the 70s, the victorious Labour party won only 37% of the popular vote, but a working majority in Parliament.

In 1983, the ruling Conservative Party received 42% of the votes and 61% of the seats; Labour won 27% of the votes and 32% of the seats; the Liberal/SDP alliance captured 25% popular support but only 3.5% of the places in the House of Commons.

The electoral result was obviously unrepresentative of the level of popular support for the Liberal/SDP alliance.

In Malaysia, except for 1969 when the Alliance received 49.3% of the popular vote, the ruling coalition has secured absolute majorities of the votes polled at ten out of eleven elections.

But there are vast disparities between the Alliance/Barisan share of the popular vote and its share of Dewan Rakyat seats as the table indicates.

Proportional representation: In this system, parliamentary seats are given to parties in proportion to the percentage of popular vote obtained by them. The positive outcome is that the legislature is truly representative.

But the negative feature of this system is that it leads to the growth of a large number of political parties. When each interest can secure separate representation, it is natural for every dissenting group to jump into the political arena with the hope of securing some representation.

Under this system no single party secures an absolute majority in the legislature. Law-making becomes difficult. Coalition governments and political instability often result.

Italy’s misadventure with proportional representation after World War II led to frequent, and sometimes yearly, changes in government.

In sum, it can be stated that the vicissitudes of the electoral law are many. There are no ideal systems and no quick-fix solutions to obvious defects.

The law walks a tightrope between what is ideal and what is workable; what is just and what is feasible.

More than in other fields of law, in this area we have to come to terms with the pragmatic view that “that is best which works best”.

Dr Shad Faruqi is Professor of Law at UiTM

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