Some historical moments come to define an institution. If the Malaysian media had the Utusan Melayu strike of 1961, then its possible to argue that the Election Commission (EC) had its Waterloo during the tenure of the first chairperson, Mustaffa Albakri. What happened and why this has shaped this institution, so central to the functioning of our democratic system, we shall soon see. To begin with, lets establish what the role of the EC ought to be.

Simply put, the EC was constituted to conduct 'free and fair' elections. By ensuring that all citizens can elect a representative freely, and that all those who desire to stand as candidates can present themselves to the voting public unencumbered, the EC creates a 'level playing field'. Granted that the EC exists under certain political constraints it is still possible to assess its performance both in what it does and what it chooses not to do.

What we may call the 'Albakri affair' begins at the founding moment of the nation itself, when the fundamental tenets of political life were established as the constitution.

The EC was established by Articles 113 and 114 of the Federal Constitution in 1957. The principal laws relating to elections in Malaysia are embodied in Part VIII (consisting of Articles 113-120, together with the Thirteenth Schedule) of the constitution. The EC was constituted for the purposes of conducting elections, keeping electoral rolls and reviewing the division of the country into constituencies. Consisting of a chairperson and three (in 1957 but now seven) other members appointed by the Yang Di Pertuan Agong, the EC was at that time set up with the intent for it to be a completely impartial and independent body.

Pivotal role

It was expected to play a pivotal role in the conduct of free and fair elections. The commission was thus required to be honest, competent and non-partisan. In order that it had the necessary autonomy from the executive to carry out its functions, the constitution provided certain safeguards such as protecting the members of the commission from arbitrary dismissal. Members of the EC can only be removed from office in the manner provided with regard to a judge of the Supreme Court and the salaries of its members cannot be diminished during their term of office and all remuneration of election commissioners is charged on the consolidated fund and is thus removed from annual debate and approval by Parliament.

The first chairperson of the EC was Mustaffa Albakri a former deputy chief minister of Perak. His first task was to prepare for the 1959 election with 104 new constituencies drawn from the 52 existing ones (used to conduct the 1955 pre-independence election). However, unlike the drawing of constituencies for the 1955 election, the principle of rural-urban weightage was reduced from 50 to 15 percent as provided by the Merdeka Constitution. This resulted in the doubling of non-Malay votes and the Alliance coalition won 74 out of the 104 seats compared to 51 out of 52 in 1955. That is, with a reduced majority.

After the 1959 election, the EC, as required by the Constitution, undertook to redraw the constituencies. The delineation was done by EC with a scrupulous concern for the fairness of division. The EC, in its Delineation Report of 1960, was almost perfectly equitable to electors in urban and rural locales. However, this was viewed with alarm by the Alliance who expected it to affect its future electoral fortunes.

In 1960 an unsuccessful attempt was made to remove Mustaffa by amending the constitution. In 1962, the government decided to amend the constitution and rejected the 1960 Delineation Report. The Constitution Amendment Act 1962 reduced both the powers and independence of the commission. The EC's power to change the boundaries of the constituencies was reduced to that of 'recommending' them to Parliament, which under the 1962 amendments became the final arbiter on the basis of a simple parliamentary majority. Rural-urban weightage was also restored to the pre-independence 50 percent. Certain new principles were also introduced in Part I of a new Thirteenth Schedule to the constitution.

Some may regard this transfer of power from the EC to Parliament is in keeping with orthodox constitutional doctrine. But in Malaysia the executive has dominated Parliament for so long that the constitutional doctrine of separation of powers and maintaining the autonomy of certain independent bodies, including the EC, remain highly problematic.

Severe limits

Hence, there are severe limits to the extent to which the EC can be protected by a constitution that is subject to constant amendments by the executive. The successful functioning of an electoral system depends on substantive democracy and the existence of certain facilitating conditions, many of which are still absent in Malaysia.

No less important is the electoral system itself and the basic rules by which the electoral system is broadly identified. These and other rules constitute the conditions and constraints within which the EC has to function. However, the EC still retains broad and important functions, as well as considerable discretion and initiative, and its performance can have a significant impact on public confidence in the electoral system.

Two dimensions of performance, or functional requisites, must be satisfactorily met by the EC. One is competence in carrying out its functions. The other is impartiality, that is to say, the EC must be widely perceived to be impartial and hence fair to all contestants. The issue of the EC's independence or autonomy is important because it is widely believed to be essential for ensuring impartiality. The competence and impartiality of the EC have both become a public issue. One of the more serious expressions of this doubt consists of complaints about the accuracy of the electoral rolls. Equally serious are those with respect to constituency delimitation.

One basic function of the EC is the preparation of an accurate and clean electoral roll. Allegations of irregularities in the electoral rolls have been made with increasing frequency over the years since1957. The nature of such allegations varies from the presence of "phantom voters" (names of persons who do not qualify to vote) to complaints of "imported voters" (names of persons not resident in a particular constituency).

Although the EC is responsible for the preparation of the electoral rolls, it depends on various government agencies to provide information concerning the eligibility of persons to be placed on the rolls. According to Article 119 of the constitution every citizen who, on the qualifying date, has attained age of 21 years, and is resident in a constituency or, if not so resident, is an absent voter, is entitled to vote in that constituency in any election to the House of Representatives or the Legislative Assembly unless he is disqualified under clause (3) of Article 119 or under any law relating to offences committed in connection with elections.

It is the requirement of residency that has posed problems for the EC. Data from the National Registration Department may be reliable to establish citizenship status but not necessarily the fact of residence as the address given in an individual's identity card may not be up to date or accurate. In other countries data for the preparation of the electoral roll is made available by the local governmental body that provides municipal and social services to residents. Thus it requires citizens to maintain their current address of residence.

Delimiting constituencies

Another function of the EC as mentioned earlier is to delimit constituencies which it undertakes in general reviews and recommends changes to the prime minister who will then submit the recommendations for parliamentary approval. The prime minister has also been given the powers to make revisions to the EC's recommendations before submitting to Parliament for approval. The last delimitation exercise was in 2003.

In the first-past-the post electoral system these two issues-the presence of non-resident or 'imported' voters and questions regarding the delimitation of election constituencies-can easily undermine public perception of the efficiency and impartiality of the Election Commission.

The EC is also vested with considerable discretionary powers to conduct the elections. On the whole the EC carries out its functions of managing the elections in accordance with the rules and regulations. However, there are some areas where it should become involved but has chosen not to. These relate to the enforcement of laws to ensure that competition is both fair and equal. Deviations from the principle of a "level playing field" has had serious implications for a parliamentary democracy such as ours.

It must be reminded that the credibility of the Malaysian electoral system does not depend entirely on the EC's performance or 'administration' of the system. From 1962 onwards several new laws and government practices have been introduced that may impinge on the EC's impartial management of the electoral process.

Tomorrow:

What the future holds (Part 5)

Yesterday: The Malaysian voter - a profile (Part 3)

This five-part series on elections were co-authored by Ikmas deputy director NORANI OTHMAN, Ikmas senior associate fellow MAVIS PUTHUCHEARY, Merdeka Centre's IBRAHIM SUFFIAN and freelance journalist SHARAAD KUTTAN.

Institut Kajian Malaysia dan Antarabangsa (Ikmas) at Universiti Kebangsaan Malaysia, is a social science research institute. Together with the generous assistance of the Friedrich Naumann Foundation, Ikmas has been conducting a study of the Malaysian electoral system of the past two years.