Election Commission’s independence must be institutionalised

Polling station

Prior to 2018, it was widely held that the Malaysian electoral system greatly favoured the government at the expense of the opposition.

The ruling coalition won all national elections, and almost all state elections, since independence. Barisan Nasional’s previous electoral success was partly due to its ability to attract the majority of votes, including a substantial share of the votes from each major community.

Despite the bias of the electoral system, Malaysian elections were contested vigorously by opposition parties and have not been characterised by widespread fraudulent practices such as ballot-box stuffing or blatant physical pressure on voters. There have also been no serious legal barriers to parties wishing to contest.

Be that as it may, there was a consensus among social activists and opposition parties that the Malaysian electoral system was broken and needed to be fixed.

One of the concerns that was raised was the serious structural flaws concerning the independence of the Election Commission (EC). It is imperative that a non-partisan and balanced assessment of this issue is taken up by a neutral body.

In trying to fill up this void, the Centre for Policy Research and International Studies, Universiti Sains Malaysia, and Malaysia Reform Initiative (MARI) recently held a roundtable discussion on how to find ways to strengthen the EC.

All the participants in the roundtable agreed that the independence of the EC had been compromised, and that the importance of EC cannot be overstated, mainly because electoral administration in the country is strictly under its purview.

Article 113 of the Federal Constitution provides the functions of the EC, which included the preparing, and revising of electoral rolls, reviewing, and delineating electoral constituencies, and the conduct of elections.

Over the years, the EC had run into difficulties with the ruling party. The government’s ‘assault’ on the commission began by it making clearly partisan appointments to the EC, to counterbalance its ‘overly’ independent chairman, Datuk Mustapha Albakri Hassan, even before he retired in 1967.

When the other members – Lee Ewe Boon and Jitt Singh – retired in 1964 and 1965, they were replaced by MCA’s Ng Chong Wai and MIC’s Parameswaran Pathmanabhan, respectively.

Also appointed was Datuk Abang Haji Marzuki Nor, from East Malaysia, who was also a member of the ruling Alliance in Sarawak. These appointments could hardly be said to comply with the constitutional requirement of ensuring public confidence in the EC.

It has been noted that by these appointments – two of which were made despite vehement objections from the EC – the ruling coalition had succeeded in penetrating the commission, gradually making it more ‘agreeable’ to the Alliance Party’s interests.

Subsequent replacements of EC members, mainly by retired civil servants, have not been as flagrantly partisan as those just described, nor were they perceived to be as independent as the first chairman.

They have also not attracted much attention or provoked controversy. However, by its previous actions, the government has clearly signalled to the EC its concerns. Deficiencies in formal safeguards and insufficiently robust appointments do not necessarily produce deficiencies in the actual performance of the EC.

However, they do make it more difficult for the EC to withstand pressures from the government. Hence, it is less likely, at least in the public’s view, that it would do so.

This imposes an added burden on the EC to act carefully, even prophylactically, if public confidence in its impartiality is to be maintained. This heavy burden is one that the EC does not appear to have successfully discharged.

In fact, not long after the amendments and the partisan appointments in the 60’s, the EC began providing the prime minister with a preliminary report of its proposals, thus giving him a privileged opportunity to vet the proposals before they were made known to the public.

Although not expressly prohibited, such a procedure was clearly not envisaged by the constitution. Thus, doubts have lingered about the institutional integrity of the EC since the 1960s.

These doubts have not been put to rest by the way the EC subsequently performed its major functions. Clearly, the EC manages the process that determines who comes to power.

Its independence from the executive must therefore be institutionalised. Much of the roadmap to such institutional reforms were already spelt out in the Pakatan Harapan (PH) manifesto.

Even though the PH government is no more, the current set of leaders need to have the political determination to push through these reforms, and where constitutional amendments are required, to persuade opposition parties that these reforms are also in their best interest, and the interest of the nation.

Only then, will electoral democracy in the country be meaningful.

This is the personal opinion of the writer and does not necessarily represent the views of Twentytwo13.