AN electoral battle is around the corner in the Machap constituency in Malacca. As happens before all such gladiatorial contests, the entire election machinery is exposed to the fires of scrutiny. Not surprisingly, it is found to be wanting in some parts.
It is alleged that the electoral roll contains many phantom voters, including names of deceased persons and fictitious constituents at false addresses.
The Election Commission is being urged to adopt the practice in many other societies of marking voters thumbs with indelible ink to prevent them from voting repeatedly at different booths. Doubts are being raised about the secrecy of postal votes.
At a more fundamental level, the basic rules of our first past the post electoral system are being examined for their fairness and justice.
A genuinely democratic electoral process must possess the following salient features:
·Constitutional provisions for the existence, composition and tenure of legislative assemblies;
·An electoral system that translates votes into parliamentary and state seats;
·An impartial machinery for delineating and revising electoral districts;
·A system of universal adult franchise i.e. an equal right to vote irrespective of race, religion, gender, economic or educational status;
·A fair and impartial machinery for drawing up the electoral register;
·Legal rules for the eligibility of candidates;
·Legal rules for the nomination of candidates;
·Legal and conventional rules for the fair 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 machinery to supervise voting and counting;
·Safeguards for secrecy of the ballot paper;
·An independent mechanism to adjudicate election disputes; and
·Provision for filling of vacancies.
One of the major challenges of electoral systems is to determine how legislative seats must be awarded to reflect votes cast by the electorate.
Two main types of electoral systems exist the simple plurality system as in Malaysia and the system of proportional representation as in many European countries.
This system which we adapted from the UK is built on a number of fundamentals. First, each registered, adult person, irrespective of his status or origin, is entitled to one vote. This is a furtherance of the constitutional promise of equality before the law in Article 8.
Second, constituencies are approximately equal in population size so that each vote carries approximately the same value. An important exception to this rule in Malaysia is that our Constitution permits rural constituencies to be smaller in population size than urban electoral districts.
Third, all constituencies are single-member constituencies so that there are as many electoral districts as there are seats in the elected chamber. 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 in his constituency is declared elected. There is no requirement that the winner must obtain a majority of the votes polled. As long as he has the largest vote, he wins.
This simple plurality rule creates problems in multi-cornered contests if the winner secures the support of only a minority of the voters. For example, if there are three candidates A, B and C and A receives 40% of the popular vote, B 35% and C 25%, then under our present system A is entitled to the electoral prize. This is despite the fact that 60% of the voters rejected him and he failed to obtain a majority of the ballots cast.
In Malaysia one-third and in the UK one-half of all candidates fail to obtain clear majorities in their constituencies. This casts a doubt on the legitimacy of their mandate. It also means that in some constituencies the minority rules the roost and the majority goes unrepresented in the legislature.
At the national level this winner-take-all, simple plurality system permits a massive disparity and disproportionality between the percentage of votes polled and the percentage of parliamentary seats won.
In the UK, for example, in the 70s the victorious Labour party won only 37% of the popular vote but a working majority in the House of Commons!
The Barisan Nasional (and before that the Alliance) has always done better. Except in 1969 when it secured only 49.3% of the popular vote, it has in all other 10 general elections triumphed with 51% to 65% of the overall vote.
But the disparity between votes obtained and seat won has always been very significant (see chart). In 2004, the BNs 63.9% popular vote translated to 90.4% seats in the Dewan Rakyat. But the oppositions combined total of 36.1% vote amounted to only 9.5% of the seats.
Such undemocratic outcomes are rampant in all simple plurality systems. They blight the representative character of elected chambers. They affect perceptions of legitimacy. They are unfair to small parties.
But the great advantage of the single member, first past the post, simple plurality system is that it produces a clear winner; it provides political stability; it reduces the number of political parties entitled to be represented in Parliament.
Proposals to adopt features of the more democratic proportional representation system are theoretically very attractive.
But the actual functioning of the proportional representation system indicates that the cure may be worse than the disease. In law as in life, our remedial measures must not only be just. They must also produce beneficial results.
Dr Shad Faruqi is Professor of Law at UiTM.