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Saturday, 31 May 2014

Fixing the Boundaries of Electoral Constituencies

Datuk Kuthbul, Dr Chin Huat, Mr Thomas & Mr Rama
By Datuk Kuthubul Zaman

On behalf of PROHAM, let me once again welcome all of you to this Round Table Discussion on “Fixing the Boundaries of Electoral Constituencies”
Without doubt, this is a very current and interesting topic! As soon as we emailed the invitations, we received immediate response from all of you.

We have invited eminent speakers on this issue and I am sure you will be enlightened at the end of this discussion.
However, permit to touch on several aspects of the Boundaries of Electoral Constituencies.

There are several practices around the world on how boundaries of electoral constituencies are drawn. Some are based on the ‘First Past the Post’ electoral system, like Malaysia; some have abandoned that system and adopted the ‘Mixed Member Proportional’ electoral system like New Zealand. The ‘Mixed Member Proportional’ system is German based whereas the ‘First Past the Post’ system is British based.
Fixing the boundaries of Electoral Constituencies is most commonly associated with plurality or majority electoral systems. As such, this must be redrawn periodically to reflect changes in the population.

Countries that fix boundaries of Electoral Constituencies must establish a formal structure and a set of rules to do this process. In such a case, electoral legislation must address the following issues:-
a)    Who should be responsible for drawing up the boundaries
b)    Their independence and neutrality
c)    Public input in the process
d)    Criteria and how often this should be exercised

In the US, the responsibility lies with the Legislator, while most Commonwealth Countries task the responsibility with Independent Commissions.
We in Malaysia too have our commission simply named The Election Commission – Whether the Election Commission has played its role fairly is a question which would hopefully be answered by the end of this roundtable discussion.

Since fixing of the electoral constituencies varies greatly around the world, there are five universal principles which should guide those tasked with drawing the boundaries:-
a)    Representativeness
b)    Equality of voting strength
c)    Transparency
d)    Non Discrimination
e)    Independence and Impartiality of the Responsible Body

Of the 5 universal principles, I would like to focus on one, Equality of Voting Strength. What is Equality of Voting Strength? In simple terms, if a representative is elected from a constituency that has twice as many voters as another constituency, voters in the larger constituency will have half the influence of the voters in the smaller constituencies. Hence, constituencies that vary greatly in population is a condition referred to as ‘malapportionment’

This malapportionment violates a central tenet of democracy namely that all voters should be able to cast a vote of equal strength.
There are several standards developed to reflect this principle.

1.    By the Organization for Security and Cooperation in Europe [OSCE], the European Commission for Democracy through Law, better known as the Venice Commission

2.    By the UN Committee on Human Rights [UNHCR]

3.    By the Commonwealth Secretariat

4.    By the International Foundation for Electoral System

General Comment 25 of the UN Human Rights Committee highlights the Article 25 of the ICCPR which lies at the core of any democratic government based on the consent of the people. The Committee states that every citizen has “the Right to Participate in Public Affairs, Voting Rights and the Right to Equal Access to Public Service” and that states must adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects.” 
Hence, the principle of 1 person 1 vote must apply within the framework of the drawing up of the constituencies. The strength of the vote of one person must be equal to the strength of the vote of another.

The speeches today will touch on these issues to examine how we have fared in this effective opportunity to Voting Rights as enshrined in the ICCPR.
Allow me at this juncture to discuss 3 Court decisions on this matter.

The first is the US Supreme Court case of Reynold v Sims. Mr. Chief Justice Warren, in delivering the opinion of the court considered a previous opinion of the same court; Gray v Sanders where it was stated and I quote:

“How then can one person be given twice or ten times the voting power or another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit, for which a representative is to be chosen, is designated, all who participate in the election are to have an equal vote – Whatever their race, whatever their sex, whatever their occupation, whatever their income and wherever their home may be in that geographical unit”  
In the same case, the court held that the concept of ‘We the People’ under the Constitution visualizes NO preferred class of voter but equality among those who meet the basic qualifications. The idea that every voter is equal in his state, when he casts his ballot in favour of one of the several competing candidates, underlies many of our decisions.

In the Australian case of AG Ex rel McKinlay v the Commonwealth, Justice Murphy stated:

“The result of the glaring inequalities between the electoral divisions in each of the states, in my opinion, is that in those states, the election proposed to be held on 13th December next, WILL NOT BE one in which the members will be chosen by the people as the constitution requires.”
And finally, in another US Supreme Court case of White v Regester, Justice Brennan, together with Justice Douglas and Justice Marshall held:

“…it is important to understand that the demand for precise mathematical equality rests neither on a scholastic obsession with abstract numbers a rigid insensitivity to the political realities of the reapportionment process. Our paramount concern has remained an individual and personal right in the right to an equal vote…

We have demanded equality in district population precisely to insure that the weight of a person’s vote will not depend on the district in which he lives”
And this will nicely lead me to the issue of gerrymandering

In 1812, the Governor of Massachusetts Elbridge Gerry, made an arbitrary arrangement of the electoral district to give one party an unfair advantage in the elections. This is how the popular term of “gerrymandering” was coined.

The speakers today will also share with us allegations of gerrymandering which essentially is a process where states/countries are divided into election districts in such a manner as to ensure one political party a majority in many districts while concentrating the voting strength of other parties into as few districts as possible.

On a personal note, I am a voter in Taman Pelangi, Johor Bahru. Taman Pelangi, if any of you have ever been there or even heard of it, is a Chinese Dominated area and is also one of the closest housing estates to the centre of Town. During one of the earlier general election, I found out that Taman Pelangi had been delineated into another Parliamentary constituency, a Malay majority area, far from the city of Johor Bahru. Thankfully, Taman Pelangi was subsequently brought back into the Johor Bahru parliamentary constituency. However, I must say, I do wonder, in the current political climate, which constituency I would be voting for in the next General Election!
I thank you all again for your eager participation, and will now pass you to the esteemed speakers whom I am sure all of you are raring to hear from. Thank you.

Welcome speech by Proham Chairman at the Proham RTD to discuss the delineation of electoral constituencies held on May 15, 2014 at GMM, KL

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