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COMMENT The recent proposal in regards to the delimitation of constituencies has raised many eyebrows. It seems that the principle of ‘one man, one vote’ is just words or is it so?

The one man, one vote principle is one in which the value of each vote is equal to each other and it is one of the core principles that ensures voting rights of a citizen in a democratic country is not diminished. The equal value of each vote can be maintained by preventing malapportionment through the equality in size of each constituency.

This principle has been acknowledged internationally as one of the core human rights of a democratic society and can be found in Article 25 of the United Nations International Covenant on Civil and Political Rights (ICCPR) and Article 21 of the United Nations Human Rights Committee General Comment 25.

Malaysia has yet to accede to UN’s ICCPR but it has been decided by the case of Nik Nazmi Nik Ahmad vs Public Prosecutor, a 2014 Court of Appeal case which states that any principles contained in an international convention which don’t contradict with the provisions in the Federal Constitution can be accepted and be used to further interpret the rights enshrined in the constitution.

Even before the UN’s ICCPR was drafted, our Federal Constitution drafters had already known the importance of the said principle to the working of democracy in Malaysia. Hence, this principle of one man, one vote was enshrined under Article 116 of the Federal Constitution with permissible variance of not more than 15 percent.

In 1962, an amendment was passed on Article 116 of the Federal Constitution which deletes the maximum 15 percent variance in delineation exercise and at the same time, inserted a new schedule, the 13th Schedule, into the Federal Constitution.

The then-deputy prime minister, Abdul Razak Hussein, as reported in the Hansard of Jan 13, 1962 at pages 4,488 to 4,490, had promised that even though the amendment will delete the maximum variance percentage sum for disparity permissible between constituencies, the principle of equality between constituencies is here to stay and he further states that the principle has been enshrined in the Thirteenth Schedule.

The law

The Federal Constitution, specifically Section 2 (c) Thirteenth Schedule states that:

“The following principles shall as far as possible be taken into account in dividing any unit of

review into constituencies pursuant to the provisions of Articles 116 and 117 -

(c) the number of electors within each constituency in a State ought to be approximately equal except that, having regard to the greater difficulty of reaching electors in the country districts and the other disadvantages facing rural constituencies, a measure of weightage for area ought to be given to such constituencies;

Clearly, our Federal Constitution has prescribed for the principle of one man, one vote but with the condition of having regard to the greater difficulty of reaching electors in the country districts and the other disadvantages facing rural constituencies, a measure of weightage for area ought to be given to such constituencies.

The prioritisation of rural constituency is not new and other country such as Australia, specifically the state of Western Australia, has similar clauses in their Electoral Distribution Act 1947. One important fact that we have to bear in mind is that all these clauses were added in at a time when roads were few and a telephone operator was still in use.

In the Australian case of Attorney-General of Western Australia vs Marquet, the Australian High Court had decided that in present day, constituency shall not be given more weightage as improvements in the means of communication had removed, or reduced, a justification commonly offered for disparities.

As a matter of fact, even the most rural constituency in today’s peninsula Malaysia has mobile telecommunication coverage and road, as such preferential weightage to rural constituency shall no longer be a valid reason as improvements in the means of communication and infrastructure had removed, or reduced, a justification commonly offered for disparities.

Hence, it will be unreasonable to diminish the value of the votes of the citizens who reside in populous urban constituency and any executive action that diminishes the value of the votes due to the fact that they live in populous urban area, is serious as it denigrates the rights, privileges and immunities of a person and in violation of Article 8 (1) Federal Constitution as citizen is entitled to be treated and protected equally by law.

The current issue

The right to vote is the core for the concept of representative government and has been held repeatedly to be a crucial feature of the system of government which the Federal Constitution establishes. Delimitation that fails to adhere to the principle of ‘one man, one vote’ is in fact depriving electors of their voting right and in contravention of what has been intended by the Federal Constitution.

Even though the 1962 amendment to the Federal Constitution had deleted the percentage sum for the maximum variance permitted between constituencies, nevertheless, in interpreting the words of the Federal Constitution, the constitution must be read in whole and respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that.

Provisions should be read broadly and purposively in a way as to advance the protection of fundamental rights, and limit only to the extent necessary, legislative and executive qualifications or encroachments on these rights. The ultimate goal is to prevent arbitrary legislative and executive action, to preserve the rule of law and maintain and preserve the principle of constitutionalism or limited government in a democratic system of government.

The recent proposal for delimitation saw some constituencies, eg. Damansara having 218 percent more voters than average compared to other constituencies in Selangor. What are the implications? If you happen to be a voter in the Damansara constituency then your vote has lesser value compared to other constituencies in Selangor.

The serious implication of the said proposal for delimitation can be shown with the example below:

Damansara (150,439 voters) - 1 seat (assuming candidate for party A wins)
Sungai Besar (42,833 voters) - 1 seat (assuming candidate party B wins)
Tanjong Karang (42,658 voters) - 1 seat (assuming candidate party B wins)
Kuala Selangor (60,425 voters) - 1 seat (assuming candidate party B wins)

With a total of 145,916 voters, party B won three seats while Party A won one seat with 150,439 voters.

In light of that, the proposal definitely baffles the mind of a reasonable man and no reasonable man on the street will think and believe the proposal adheres to the principle of one man, one vote. Hence, the Election Commission has to justify on what basis that they choose to put more voters in a constituency rather than the others.

This can be done through a local enquiry if the affected constituency is able to muster 100 objectors for the said delimitation proposal in 30 days from Sept 15, 2016 as prescribed under section 5 of the Thirteenth Schedule, Federal Constitution.

What happen if the above fails?

Then the last resort will be through Court by seeking the Court to declare on what is considered as approximately equal in Section 2 (c) of the Thirteenth Schedule of the Federal Constitution. Shall the Court decide to do so by putting a number to it; it will once and for all settle any similar dispute in the future.

It will be best to conclude by quoting the words of Raja Azlan Shah CJ (Malaya) (as His Royal Highness then was) the Federal Court case of Pengarah Tanah dan Galian, Wilayah Persekutuan vs Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135 at page 148:

“... On principle and authority, the discretionary power to impose such conditions ‘as they think

fit’ is not an uncontrolled discretion to impose whatever conditions they like. In exercising their discretion, the planning authorities must, to paraphrase the words of Lord Greene MR in Associated Provincial Picture House vs Wednesbury Corporation have regard to all relevant considerations and disregard all improper considerations, they must produce a result which does not offend against COMMON SENSE”...

“... Every legal power must have legal limits, otherwise there is dictatorship.”

SIN CHEN YEONG is an advocate and solicitor.

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