It does not make sense that in a society with the age of majority and right to be elected to Parliament at 18, a person is regarded as unfit to cast a vote.
JULY 2019 to September 2019 was a momentous period for our young citizens because, in response to several youth-led initiatives, the government in Parliament secured passage of the Constitution (Amendment) Act 2019 (Act A1603) to make the following four changes to our electoral laws:
> Article 119(1) was amended to lower the voting age from 21 years to 18;
> Article 119(4) was amended to provide for automatic registration of voters;
> Article 47 was amended to reduce the qualifying age to 18 for contesting a seat in the Dewan Rakyat; and
> The Eighth Schedule was amended in section 5 to reduce the qualifying age to 18 for contesting a State Assembly seat.
The third and fourth amendments (on the qualifying age to contest an election) took effect on Sept 10,2019 when the Amendment Act was gazetted. However, despite unanimous bipartisan support in both Houses of Parliament, and the efflux of 21 months since July 2019 when both Houses approved the historic measure, the amendments relating to voting age and automatic registration are not in force yet.
We have an amazing situation that our 18-year-olds are eligible to contest an election to the Dewan Rakyat and a State Assembly while not being eligible to vote in that very election! This incredible oddity rests on a number of legal, administrative and political factors.
Royal notification: The Constitution Amendment Act has a section 1(2) that the new law on the voting age and automatic registration will “come into operation on a date to be appointed by the Yang di-Pertuan Agong by notification in the Gazette.”
This notification has not yet been accomplished because the Yang di-Pertuan Agong acts on advice and this advice has not yet been rendered. His Majesty may wish to exercise his right under Article 40(1) to seek all information from the government on this issue.
Amendment to federal laws: To implement the 2019 constitutional amendment, consequential changes have to be made to the Election Offences Act 1954, the Elections (Conduct of Elections) Regulations 1981, and the Elections (Registration of Electors) Regulations 2002.
As Parliament has been prorogued, it cannot amend the Election Offences Act 1954. There are, nevertheless, two ways to overcome this hurdle. First, the King may rely on his power under section 14(1)(b) of the Emergency (Essential Powers) Ordinance 2021 to summon the Federal Parliament, even if for one day, to enact the necessary amendments to the Election Offences Act 1954.
Second, the King, acting on advice, may employ his law-making power under Article 150(2B) of the Federal Constitution to promulgate an Emergency Ordinance to amend the Election Offences Act 1954 to make it fall in line with the Constitution (Amendment) Act 2019. Under Article 150(7), such an Ordinance will last during the emergency plus six months after the emergency ends.
As to the Elections (Conduct of Elections) Regulations 1981 and
the Elections (Registration of Electors) Regulations 2002, these are subsidiary laws. They can be amended and updated by the Executive without any recourse to Parliament.
State constitutions: The amendment on minimum age for assemblymen requires amendments to all state constitutions.
Perak, Perlis, Kelantan, Sabah, Sarawak and Terengganu have already updated their constitutions. The other states are all under forced prorogation. This results in a constitutionally anomalous situation. In some states, contestants for Assembly seats are eligible at age 21; in others at 18. This is a serious violation of the promise of equality before the law in Article 8 of the Federal Constitution.
There are three ways to overcome this problem. First, the Yang di-Pertuan Agong can act under section 15(1)(b) of the Emergency Ordinance 2021, after consultation with the respective Ruler or the Yang di-Pertua Negeri, to summon the State Assemblies concerned to enact the necessary amendment to the state constitutions.
Second, if and when the federal Parliament is summoned, it can act under Article 71(4) to insert the Schedule 8 “essential provisions” into the Constitutions of defaulting states.
Third, on the advice of the Prime Minister, His Majesty can promulgate an Emergency Ordinance under Article 150(2B) to amend the defaulting state’s constitutions to give effect to the federal Act. Such an Ordinance will last during the emergency plus six months after the emergency is lifted.
New electoral roll: The Election Commission (EC) needs time to prepare the new electoral roll. It is estimated that with the addition of millions of voters aged 18 to 21 and the inclusion of other millions who had failed to register, some 7.8 million new voters will enter the electoral roll by 2023.
This will raise the total number of voters to 22.7 million from 14.9 million in 2018.
Initially, the EC had requested 16 to 24 months from July 2019 to give effect to these statistical changes.
Now, due to Covid-19, it is asking for an extension till September 2022 to complete the revision and updating of the electoral roll. Admittedly, the job is onerous but 16 to 24 months since July 2019 were surely sufficient.
Decoupling: To reconcile the EC’s request for more time with the surge of “Undi18” opinion, it has been suggested that the provisions on age and on automatic registration be decoupled.
Political objections: An opinion is being expressed that 18-year-olds are not mature enough to vote. Given the fact that in 237 countries, voting is allowed at 18, in some cases even at 16, this opinion is an insult to all Malaysian youths who are depicted as of lesser judgmental capacity than their brethren in other societies.
It does not make sense that in a society with the age of majority and right to be elected to Parliament at 18, right to sign contracts, join the army, get married, and obtain driving licences at 18 or below, a person is regarded as unfit to cast a vote. One must also not forget that for more than a decade, the Universities and University Colleges Act permits students to take part in party politics outside the campus.
On a prismatic interpretation of Article 5, the right to vote is part of our personal liberty.
In sum, if those who are enfranchised by Act A1603 are unable to vote at the next election, this may leave psychological scars. Let us also note that the youth, with or without the right to vote, are the foot soldiers at election time. It will be politically wise to honour their legitimate expectation and give effect to the Constitution (Amendment) Act 2019 without any further delay.
Finally, the delay in the implementation of the Amendment Act of 2019 is a terrible blow to the reputation of Parliament as the highest law-maker of the land. If a much-celebrated law like Act A1603 can be so marginalised, it indicates that the centre of gravity of the legislative process has shifted from Parliament towards the Executive.
Prof Shad Faruqi is holder of the Tunku Abdul Rahman Chair at UM, and the Tun Hussein Onn Chair at ISIS Malaysia. The views expressed here are the writer’s own.