Review of 2021 electoral reforms

IN July 2019, the Malaysian Parliament enacted a constitutional amendment to lower the voting age for general elections from 21 to 18, provide for automatic registration of voters, and reduce the qualifying age to 18 for contesting a seat in the federal or state legislature.

The law came into effect in 2021 after the momentous Kuching High Court decision that the government must implement the “Undi-18” law by Dec 31, 2021.

At a seminar at the Faculty of Law, Universiti Malaya, last Saturday, the panel was asked to address the question of whether 18-year-olds are mature enough to responsibly exercise the right to vote conferred on them by the Constitution Amendment Act.

We were unanimous in agreement, noting that if a 16-year-old can be tried in the courts as an adult and 18-year-olds may get married, sign a contract, obtain a driving licence, join the army, start a company, invest in stocks and pay income tax, then it does not appeal to reason that in a country with a highly subsidised education, nearly 90% literacy, and a statutory age of majority at 18 under the Age of Majority Act 1971, the right to vote must be withheld till age 21.

It is also notable that before 2021, although the youth were not franchised, they were often used by political parties for mobilisation purposes.

Data indicate that 70% to 80% of our population is urbanised, and 54% uses the Internet. In the age of social media, the youth have access to alternative sources of information that were unavailable to adults a decade ago.

I took the liberty to add that maturity has many dimensions – biological, emotional, psychological, intellectual, cultural, political and linguistic. These dimensions develop separately, and no scientific evidence exists to prove that the attributes of maturity, which were supposedly absent at 18, suddenly begin to anoint a person at 21.

As an educator, I have observed that many first- and second-year students possess intellectual, linguistic, emotional and psychological gifts many fourth-year or even graduate students lack!

Maturity does not follow a calendar. Childhood and social circumstances play a role. Some people mature much earlier. Some remain deficient in various aspects of their personality till much later. The “maturity magic” about 21 is a legal myth.

The panellists took note that a survey indicates that nearly 86% of nations with electoral exercises use 18 as the threshold voting age. But variations exist:

> In Indonesia, there is no threshold for married persons;

> In some countries like Germany, the age varies for federal, state and municipal elections;

> In 11 nations including Brazil, Cuba and Malta, the voting age is 16;

> In seven nations including Indonesia and North Korea, it is 17;

> In 205 countries (or 86%), it is 18;

> In the Solomon Islands, it is 19;

> In five nations including Japan and Taiwan, it is 20;

> In 11 nations including Singapore, it is 21; and

> In Uzbekistan, it is 25!

The panellists took note that the pre-2021 legal position had serious implications for the democratic legitimacy of the elected government.

First, the much-touted age of 21 was subject to many qualifications. A voter had to be 21 on the ‘’qualifying date’’. This date was neither the date of the election nor the date of registration but that on which the registration was confirmed. Normally, six months would elapse between registration and confirmation. Thus, if a 21-year-old registered as an elector in November 2017, he was too late to vote in the May 2018 general election. He would be eligible to vote only in GE15 in 2023, by which time he will be nearly 26!

Second, there was no automatic registration. According to the Election Commission’s (EC) pre-GE14 data, out of a total population of 32,258,900, only 18,609,588 Malaysians (or 57.6%) were above 21 years of age and therefore eligible to vote in federal and state elections.

However, only 14,940,624 voters (80.28% of those eligible) took the trouble as at the end of 2017 to register as ordinary, early or postal voters. Because of the absence of automatic registration or advance registration, 3,668,964 eligible electors forfeited their right to participate in democracy’s greatest showcase event.

Third, unlike countries such as Australia, Bolivia and Singapore where voting is compulsory, in Malaysia voters face no sanction if they refuse to cast their ballots. Twenty per cent to 25% of eligible voters do not exercise their right to vote.

The combined effect of these three factors is that in the fourth quarter of 2017, Malaysia’s population was 32,258,900. Due to the high voting age of 21, the number of citizens eligible to vote was only 18,609,588 (57.6%). Due to freedom of choice, 3,668,964 (19.7% of those eligible) failed to register. The total electorate at the end of 2017 was 14,940,624, which was only 46.3% of the total population!

Subtract from the 14,940,624 voters, an average of 25% electors failed to vote on election day for the last 14 elections. This leaves us with about 38% of the population that actually takes part in the five-yearly exercise!

But with the 2021 reforms, these embarrassing figures will shoot upwards dramatically because the electorate will be significantly enlarged. In 2019, the EC projected 7.8 million new voters, a 50% increase from the current number, by 2023 if the Automatic Voter Registration (AVR) system comes into place. AVR itself could bring in 4.5 million voters aged 21 and above who have yet to register as voters.

According to Cassey Lee of ISEAS, Singapore, the voter base will rise by 52.3% from 14.9 in 2018 to 22.7 in 2023. Nearly two-thirds of the population will be eligible to vote at the next GE.

What are the political implications of the greatly enlarged electorate for GE15? On this, one can only speculate. Voters aged 18 to 21 years will constitute 16% of the electorate. Due to the demography of the youthful population, the bulk will be ethnic Malays. This is a factor of importance to Malay-based parties.

However, one cannot presume that the 18-21 group will necessarily follow the ethnic and religious rhetoric of the tired, old generation. Armed with alternative sources of information, it may be attracted to issue-based platforms. Hopefully, it will be receptive to the advocacy of the rights of future generations, inter-generational justice, problems of corruption, poverty, inter-ethnic and intra ethnic disparities of wealth, deforestation, declining standards of education, massive disparities in pay structures, and unequal enforcement of laws.

Do the Melaka and Johor state elections provide pointers for gauging electoral behaviour? This requires in-depth study. What one can observe is that mid-term, state polls are not always a reliable index of voter behaviour at national elections.

The panel also noted that the scintillating electoral reforms of 2021 bring in their wake a few legal anomalies. One is that while an 18-year old student can vote, stand for election and even get elected, staff members do not have such leeway under the Statutory Bodies (Discipline & Surcharge) Act 2000 (Act 605). Under Sections 18 and 20 of Act 605, employees of universities are subject to strict control in the matter of making public statements or taking part in political activities.

Such a disparity may well be questioned in court and should be addressed by Parliament before someone knocks on the doors of justice.

Shad Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya.

The views expressed here are the writer’s own.

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