Reforms to enlarge the electorate

  • Reflecting On The Law
  • Thursday, 26 Apr 2018

FOR the 14th time in our nation’s history, the electorate will have the chance, on May 9, to participate in democracy’s greatest showcase event – the exercise by the people of their right to choose their govern­ment.

In Malaysia, under Article 119 of the Federal Constitution, a voter must satisfy the following qualifications:

Citizenship: All categories of citizens, whether by operation of law, naturalisation or registration, are eligible to vote.

Age: An elector must be 21 years of age on the “qualifying date”. This date is not the date of the election nor even the date of registration, but the date on which his registration is confirmed. There may be a six-month gap between registration and approval.

In practice, this means that if a 21-year-old registered as an elector in December 2017, he is too late to vote for this election and will only be eligible to vote for GE15, which is due in 2023, by which time he may be 26!

A survey of 222 nations or regions where elections take place indicates that in seven nations, including Austria and Brazil, the voting age is 16. In six countries, including Indonesia and Sudan, it is 17. One hundred and eighty-eight countries have 18 as the age of franchise. In South Korea, it is 19. In four countries, among them Japan, Taiwan and Tunisia, it is 20.

In only 15 countries, including Malaysia, the right to franchise comes at 21. Uzbekistan beats us all with 25 as the eligible age.

Registration: A voter must be registered on the electoral roll in the constituency in which he resides on the qualifying date. This is necessary to prevent a massive influx of outside voters in hotly contested constituencies. But the undesirable result is that those who fail to register or fail to return to their consti­tuency on election day get disenfranchised.

The Election Commission has reported that 18,420,666 of our citizens were above 21 years of age and therefore eligible to vote in federal and state elections.

However, as of December 2017, only 14,968,304 took the trouble to register as voters. This means that at least 3,452,362 Malaysians have opted to forfeit their right to parti­cipate in democracy’s showcase event.

A possible solution is that every citizen of age, according to National Registration Department records, must be automatically registered at the address on his identity card. If he wishes to change his residence and his voting constituency, as is his right, the burden should be on him to fill the necessary forms.

Alternatively, advance enrolment between 16 and 18 should be permitted. Australia allows it at 17.

Residence: A voter must be a resident in a constituency on the qualifying date. If not, he must be registered as an absent voter under the Elections (Postal Voting) Regula­tions 2003.

This residence requirement deprives thousands of citizens who are out of town on election day. The residence requirement appears most anachronistic and must be viewed afresh either by vastly expanding the postal registration eligibility or by permitting early voting.

The homeless lack a regular address and are unable to register. Here is an example of how even in this age, electoral law stigmatises poverty and homelessness!

Disqualifications: Just as the qualifications for voting are prescribed, disqualifications are similarly woven into the law by Article 119(3).

A citizen is not eligible to vote if he is, on the qualifying date, detained as a person of unsound mind or serving a sentence of imprisonment for an offence in any part of the Commonwealth and was sentenced to death or to imprisonment exceeding 12 months and has not on the qualifying date served out his sentence or been pardoned.

In Yazid Sufaat v Suruhanjaya Pilihanraya (2006), it was held that preventive detainees are not convicted prisoners and are entitled to postal voting if they had registered for such voting. This law is in contrast with Canada, where in the case of Sauve v Canada (2002), all pri­soners were held entitled to vote because of a constitutional right.

Disqualification also attaches to bankruptcy or insanity.

Voting not compulsory: Unlike countries such as Australia and Bolivia, where voting is compulsory, voters in Malaysia face no sanction if they refuse to go to the electoral booths. Nearly 25% of eligible voters do not exercise their right to vote. The combined effect of all the above factors is that nearly 66% of the total population does not take part in national or state elections! This is serious and has obvious implications for democratic theory.

Reform: An unreasonably high voting age, coupled with registration and residence requirements and the fact that voting is not mandatory, has the undemocratic effect of shrinking the electorate unconscionably.

The population in Malaysia was 32,300,000 as of the 4th quarter of 2017. Due to the high voting age, the number of citizens eligible to vote is only 18,420,666 (or only 57% of the total population). Due to freedom of choice, 3,452,362 citizens failed to register. The total electorate in December 2017 was 14,968,304, which was equal to 46.34% of the total population!

For the last 13 elections, an ave­rage of 25.4% of the electors failed to vote on election day. If we subtract this proportion from the total number of registered voters, it leaves us with merely 34.57% of the population that actually takes part in democracy’s iconic five-yearly exercise!

Lowering the voting age will immediately expand the number of voters and improve the legitimacy of the government in power.

Malaysian data indicates that 70% of our population is urbanised, and 54% uses the Internet. Total adult literacy rate is 92%. A 16-year-old can be tried in the courts as an adult. An 18-year-old may get married, join the army, start a company, invest in stocks and pay income tax.

It does not appeal to reason that in a country with nearly 90% literacy and with 18 as a statutory age of capacity, the right to vote must be withheld till age 21.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya. The views expressed here are entirely the writer’s own.

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