Will other nefarious ways be used by the Election Commission (EC) or the Prime Minister to pass an unfair Selangor delimitation plan?

Media Statement by Dr. Ong Kian Ming, Member of Parliament for Serdang and Assistant National Director for Political Education, on the 18th of January 2018

Will other nefarious ways be used by the Election Commission (EC) or the Prime Minister to pass an unfair Selangor delimitation plan?

Even though the 2nd Notice (Syor 2) of the Delimitation Exercise in Selangor did nothing to make the number of voters in the parliament and state seats approximately equal[1] and even though the Election Commission (EC) was guilty of ethnic gerrymandering in a number of state seats in Syor 2[2], it was still somewhat surprising that the EC reverted to the electoral boundaries used in the 13th general election for most of the seats in Selangor. This raises the question of what motivated the EC to do so?

Is it possible that the EC actually took into account some of the viewpoints of the objectors who presented their views in the public hearing after the 1st Notice (Syor 1)? I am sceptical of this viewpoint because many of the complaints highlighted the differences in the number of voters between state and parliament seats under Syor 1. The EC would have followed up on these complaints by equalizing the number of voters between the Seri Serdang (74,563 voters) and Kinrara (34,910 voters) state seats (both of which are under the Puchong parliament seat), for example. But the EC chose to maintain the GE13 borders of both state seats and allow this discrepancy to continue to exist.

Given that the EC has a very poor record of responding positively to feedback from the public and opposition politicians (and most of the objections were filed / organized by opposition politicians), there must be other reasons behind the EC’s partial U-turn in Selangor.

One possibility is that the EC is concerned that a court case filed by either the Selangor state government or by a voter in Selangor will delay the delimitation exercise in Selangor (and hence the entire delimitation exercise for Peninsular Malaysia) if it maintains the boundaries proposed in Syor 1. The act by the EC to increase the size of discrepancies in the number of voters between parliament and state seats was too obvious and subject to legal challenge. The Selangor state government could pursue a fresh injunction against Syor 2 or it could be successful in its appeal in the Court of Appeal against Syor 1. The EC wanted to pre-empt this by reverting back, mostly, to the GE13 boundaries for most of the seats, especially for the more egregious cases involving the PJ Utara and PJ Selatan parliament seats.

The EC may feel that this ‘price’ is worth paying i.e. maintaining most of the boundaries in Selangor because the delimitation exercise in other states in Peninsular Malaysia has delivered sufficient electoral advantages to the BN. This would be my most ‘generous’ reading of the EC’s strategy.

Of course, this does not mean that the proposals presented in Syor 2 are final. The EC may be hoping that that opposition parties will be complacent and not file in any objections against Syor 2 because the boundaries from GE13 have largely been maintained. If the opposition parties do not file in many objections but if the BN parties organize themselves and file objections to Syor 2 and ask for the boundaries proposed in Syor 1 to be restored, the EC may take the opportunity to shift the boundaries back to what was proposed in Syor 1 before submitting the entire delimitation plan to the PM.

Even if very few objections are filed against Syor 2 in Selangor, the EC still can unilaterally revert back to the boundaries proposed in Syor 1. This, of course, would mean that the EC is acting in very bad faith. But the problem for the opposition is that the final delimitation exercise would not be publicly revealed until it is tabled in parliament in the upcoming March / April 2018 sitting. By then, it may be too late to make a legal challenge to the whole exercise once it is tabled in parliament.

There is however another possibility. Section 9 of the 13th Schedule of the Federal Constitution seems to give the power to the Prime Minister to modify the proposal for the delimitation exercise after it has been submitted to him. (See Figure 1 below).

Figure 1: Section 9 of the 13th Schedule of the Federal Constitution which writes that the PM can modify the Election Commission report for the delimitation exercise AFTER it has been submitted to the PM

Given that the BN is desperate to win back Selangor, this is the most likely outcome. The EC can absolve itself from acting in bad faith by putting the responsibility solely on the Prime Minister and the Prime Minister can refer to the Federal Constitution to say that he is acting within his powers, even though by doing so, it would make a mockery of the entire delimitation exercise and the need for public hearings.

What can be done to stop something like this from happening? A few things. Firstly, as many objections must be filed against Syor 2 in Selangor as possible. This will force the EC to have a longer period for the 2nd public hearing and delay the entire process to after the end of the March / April parliament sitting thereby preventing the tabling of the delimitation exercise in parliament. Secondly, the Selangor state government can continue to pursue its legal challenges in court including filing for an injunction against Syor 2 and continuing to challenge the gross malapportionment in Selangor in the Court of Appeal. Only with a concerted and determined effort, do we stand any chance of delaying the unfair and unconstitutional delimitation exercise from being passed in the March / April 2018 parliament sitting.

[1] http://ongkianming.com/2018/01/16/media-statement-the-delimitation-exercise-in-selangor-is-still-unfair-and-unconstitutional/

[2] http://ongkianming.com/2018/01/17/the-selangor-delimitation-exercise-is-guilty-of-ethnic-gerrymandering/