Explainer: Malaysia’s Electoral System

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This brief article presents an overview of the Federation of Malaysia’s (Malaysia) electoral system, how it works, how and why it has been altered over the years, and the challenge it presents for representative democracy in Malaysia.^{[1], [2]}

“…the view we take is that democratic government is the best and most acceptable government. So long as the form is preserved, the substance can be changed to suit conditions of a particular country.”

Tun Abdul Razak Hussein, Second Prime Minister of Malaysia.^[3] 

A democracy’s electoral system is fundamental to its legitimacy, as from the electoral system, the form and style of representation flow, the relative strength of political parties, the formation of government and the development of policy positions. In a representative democracy, the structure of the state’s electoral system plays a critical role in determining the nature and form of political discourse and parliamentary representations. The electoral system establishes who may vote, how many representatives are to be chosen from which areas, who oversees the conduct of elections, and how votes are counted. Adjustments and manipulations of these elements can have severe positive or negative consequences on the stakeholders. Electoral system changes also strongly impact the ability of citizens to participate in the state’s general political discourse and democratic processes⎯as voters, candidates, members of political parties, etc. Beyond any formal barriers, the perceived fairness or otherwise of the electoral process can affect citizens’ willingness to engage in the democratic process.^[4]

Malaysia considers itself a democracy—a federation of 13 states and three federal territories^[5], with a form of government that is constitutional, monarchical, and parliamentary at both the state and federal levels, with every state having its constitution. Common to every state is the Federal Constitution (FC). Since 1954, Malaysia has adopted election laws generally practised (at that time) in the United Kingdom. The primary election laws are found in the Elections Act 1958, Elections Offences Act 1954, Election Commission Act 1957, Elections (Registration of Electors) Regulation 2002, and Elections (Conduct of Elections) Regulations 1981. The electoral system subscribes to the first-past-the-post (FPTP) or plurality method.^{[6], [7]}

As Malaysia is a federation, it has two levels of elections⎯the federal level, which elects the members of Parliament (MPs) for the Dewan Rakyat (DR), and the state level, which elects members for the Dewan Undangan Negeri (state legislative assemblies/DUN). There are 222 seats representing the 222 constituencies. The Dewan Rakyat (House of Representatives) is part of the bicameral Parliament, with the Dewan Negara (DN) being the Upper House. There is no election for members (Senators) of the Dewan Negara as they are nominated by their DUN—two for each state. The Yang diPertuan Agong appoints the remaining 44 members from names proposed by the government, including four appointed to represent the federal territories.^[8]

However, Malaysia’s ‘democratic’ status is plagued by two issues: (a) that elections are neither free nor fair; and (b) it has never experienced party alternation since the first elections in 1955, under British home rule, and the first GE after independence in 1959 until GE14 in 2018 (63 years of single party/coalition rule).^[9]

There have been 14 general elections (GE) since Malaysia gained independence in 1957.^[10] The Barisan Nasional (BN) and its predecessor, the Alliance (Perikatan), had won all (except the historic GE14 in 2018). An important reason for BN’s success is the electoral system.^[11]

Issues with Malaysia’s Electoral System

Characterised by excessive malapportionment and gerrymandering^[12], enabled by 63 years of single-party/coalition rule, Malaysia’s FPTP electoral system has been central to Malaysia’s democratic deficit, yet constituency malapportionment and gerrymandering only began with zest at the 1974 delimitation review.^[13]

After Merdeka, following the Reid Constitutional Commission (1956-1957), a constitutional monarchy, a federal form of government and elections based on Westminster-styled institutions was implemented. The electoral system was broadly anchored to elements of procedural democracy such as transparent and autonomous electoral institutions and procedures, freedom of political association, and campaigning, guaranteed by law and constitutional provisions which devolve duties of conducting elections to an independent EC. 

Two issues have driven the degradation of Malaysia’s electoral system since then—communalism^[14] and consociationalism.^[15] According to Ratnam, communal politics, a feature of Malaya’s plural society^[16], valorised communal interests through ethnically constituted political parties. Moreover, ethnic cleavages were reinforced with religious affiliation (Malays were Muslims, Chinese were Buddhists/Taoists, and Indians were Hindus). Communalism was seen as a social feature of plural societies detrimental to social and national integration.^[17] In 1957, the population of the Federation of Malaya were Malays (50%), Chinese (37%), Indians (11%), and others (2%). The Malays, led by UMNO, had already made their displeasure of giving equal citizenship to non-Malays (immigrants in Malaya) known by stopping the proposal of a Malayan Union in 1946. The British replaced the Malayan Union with the Federation of Malaya (Persekutuan Tanah Melayu) in 1948. This provided for Malay hegemony of the political system.^[18]

Communalism came to be mediated by political processes of ethnic power-sharing in the mid-1950s through the Alliance/Perikatan (United Malay National Organisation/UMNO, Malaysian Chinese Association/MCA & Malaysian Indian Congress/MIC).^[19] However, Lijphart recommended four conditions for the successful implementation of consociationalism: (1) a grand coalition of all ethnic groups, (2) a  mutual veto in decision-making, (3) an ethnic proportionality in the allocation of opportunities and offices, and (4) ethnic autonomy.^[20] UMNO systematically violated these conditions. The party representing the Malay community on the peninsular, and who was considered as first among equals, grew in strength to become the hegemonic power in the expanded replacement of the Alliance, the Barisan Nasional (BN) after the May 13, 1969, race riots⎯itself triggered by the poor performance of the Alliance/Perikatan at the 1969 GE (GE3). 

The first significant change made to the electoral system occurred in 1962. The EC undertook the first review of electoral constituencies after the 1959 GE (GE1). It was not well received by UMNO, which had lost Malay ground to the Pan Malaysian Islamic Party (PMIP/PAS) in the east coast states of Kelantan and Terengganu. The Alliance government then introduced the Constitutional (Amendment) Act 1962, that not only annulled the revised constituencies but also removed the EC’s final power of decision on electoral constituencies and transferred it to a simple majority in Parliament.^[21] This meant that the EC could only submit reviews to the prime minister, who could make revisions before it is presented to Parliament. The 1962 Act also effectively annulled the EC’s new delineations, reverted them to the 1959 situation, and emasculated the EC’s impartial and independent role in constituency delimitations. 

The original FC (1957) allowed for a 15% deviation across constituencies from the state average.^[22] These were amended in 1962 (discussed above), 1963, and 1974. The 1962 amendment widened the range of permissible deviation from 15% to 33.33%. It also changed the basis of comparison from the state to the national average. The 1963 amendment⎯which came with the Malaysia Act 1963⎯deliberately introduced inter-state malapportionment to underrepresent Singapore and overrepresent Sabah and Sarawak. UMNO wanted to overcome the threat posed by Singapore’s 1.7 million largely Chinese inhabitants by balancing them with the natives of Sabah and Sarawak, whom UMNO assumed would be allies of the Malays. The overrepresentation of Sabah and Sarawak was also part of the 20-point agreement with Sabah and the 18-point agreement with Sarawak as part of the formation of the Federation of Malaysia. 

Expansion of the legislature accompanied interstate malapportionment, as the number of federal and state seats increased with constituency delimitation exercises in 1973, 1974, 1977, 1984, 1987, 1994, 1996, 2003, 2005, 2015 and 2016.^[23]

The Constitutional (Amendment) Act (No. 2) of 1973 was, in particular, very significant because it removed the EC’s power to apportion parliamentary constituencies among states. The number was now specified in Article 46 of the FC, amendable by the government with a two-thirds majority. 

However, despite elections not being free and fair, Malaysia did experience party/coalition alternation in 2018 (GE14), even if still subject to the following systemic, structural, and institutional factors. Unfortunately, Pakatan Harapan (PH)^[24] was toppled by an internal coup just 20 months later, in February 2020. The new coalition—Perikatan Nasional/PN^[25]—came to power with the support of the BN and PAS. The PN administration did not last long. On August 21 2021, BN returned to power. 

Issues with the electoral system remain and can be categorised under the following headings: 

• The Role of the Election Commission 

The Election Commission (EC) undertakes electoral administration in Malaysia. The three primary functions of the EC are the delimitation of constituencies, the preparation and revision of the electoral roll, and the conduct of elections for the Dewan Rakyat and the Dewan Undangan Negeri. 

The current structure of the EC, as defined in the FC and as discussed earlier, allows for executive interference or influence as the Yang DiPertuan Agong appoints its members on the advice of the Prime Minister. During BN’s long rule, the EC (like other independent institutions/agencies and government) were an instrument for the incumbent to retain power.^[26]

• Redelineation, Malapportionment and Gerrymandering of Constituencies 

The last redelineation exercise was approved just before GE14. The process was rushed, controversial, and favoured BN. The principles for delineation set in Section 2 of the 13^th Schedule of the FC state that constituencies are proposed to be “approximately equal” in the number of voters, and efforts to “maintain local ties” are called for. Malapportionment violates these principles by producing the massive difference between constituency populations that result in the value of votes becoming extremely unequal.^[27]

Gerrymandering, where boundaries are drawn to favour a particular party, usually by manipulating ethnic composition. According to Section 2(a), constituencies should not transgress state boundaries, and district and local authority boundaries (Pihak Berkuasa Tempatan/PBT) should help define what constitutes “local ties.” For the most part, the EC used district and PBT boundaries in their delineation except when it served their purpose to either “pack” or “crack” opposition strongholds. “Packing” concentrates an opposition party’s voting power into one district to reduce the value of each vote, while “cracking” is breaking up an opposing party’s supporters into many districts. 

• Questionable Electoral Roll

The integrity of the electoral roll has always been a concern. Electoral reform groups such as MERAP, ENGAGE and Bersih 2.0 independently exposed dubious voters in the roll by analysing available electoral roll data. Some issues included an excessive number of voters registered in single addresses, voters on the roll with no address, voters with identical names and dates of birth, deceased voters, and non-citizens. 

• Political Financing

Political parties are regulated by the Societies Act of 1966 under the Home Ministry. The minister has absolute discretion to declare a society illegal. Conversely, the EC has no power to register and regulate political parties. There is also a lack of regulation on political financing. Although there is the Election Offenses Act of 1954, it is rarely enforced. It does not cover the nexus between business and politics.

• Enforcement of Electoral Laws

The EC relies on the Royal Malaysian Police and the Malaysian Anti-Corruption Commission to enforce electoral laws, especially in election campaigning. Enforcement against electoral malpractices has been weak because the EC claims they do not have direct powers to act against preparators. 

Malaysia’s Electoral System at GE15

At GE14, the reformist Pakatan Harapan toppled the incumbent BN. The PH administration and civil society initiated electoral reforms to address systemic and endemic problems inherent in the electoral system and improve the political culture in Malaysia. These broad recommendations were captured by the Report of the Electoral Reform Roundtable:^[28]

1. Consideration should be given to moving away from the first-past-the-post system towards a more proportional system that can promote national unity and centrism, allow for healthy competition between coalition partners, and better represent Malaysia’s diverse population in Parliament.

2. So long as Malaysia retains the first-past-the-post system, it should address issues of over- and under-representation between Malaya states and within each state. Constituencies should also be fairly and impartially drawn. Seats should be distributed between the States based on electorate size. At the same time, strict numerical standards should be reinstated for variations between constituencies.

3. The electoral rolls should be audited and managed in an open, inclusive, and transparent manner to build public trust. A new geocoded National Address Database should be used to audit the electoral rolls and the civil registration records of the National Registration Department. The electoral rolls should be made available for public inspection and monitoring, and the integrity of the electoral rolls should be ensured before the implementation of automatic voter registration.

4. Absentee voting should be extended to Malaysian voters living in neighbouring countries and those living further afield. The EC should ensure that the campaign period is long enough and that the processes of issuing and despatching postal ballots are speedy enough to allow the ballots to be returned in time to be counted. While absentee voting facilities should be provided for some domestic voters⎯particularly East Malaysian voters in West Malaysia and vice versa⎯in the long run, voters should be encouraged to vote where they reside. Consideration should be given to holding polling for military and police voters on election day. Military and police voters should also be allowed to vote in their home constituencies via absentee voting.

5. Because of the difficulties of auditing electronic and online voting systems and securing public trust in such systems, careful investigations and public consultations should be conducted before adopting any form of electronic and online voting in Malaysia. 

6. While it should not be for government authorities to decide what is or is not “fake news”, the Election Commission and other authorities should play a role in monitoring political spending, electoral misconduct, and hate speech online. 

7. The regulation of political spending must be extended to political parties and third parties, both during and outside the campaign period, and to internal party elections. Political contributions, both in cash and in kind, should also be declared and subject to limits. Public funding should take the place of some forms of private funding, and parties should have equitable and unrestricted access to state media.

8. Rules and guidelines should be drawn for managing government transitions and codifying best practices and caretaker conventions. Consideration should also be given to a constitutional amendment submitting defecting Members of Parliament to re-election. Alternatively, suppose a mixed-member system is introduced. In that case, a distinction may be drawn between constituency MPs and party list MPs regarding party affiliation.

9. Election offences laws should be updated to clarify the roles and powers of the various state agencies and to empower the Election Commission to monitor, investigate, and penalise breaches of election offences laws.

10. The selection of Election Commissioners should be subject to scrutiny by a cross-party parliamentary committee. The Election Commission should have operational independence in staffing and budgeting, subject to scrutiny by a dedicated parliamentary select committee. The Election Commission should be given responsibility for the registration and regulation of political parties, while consideration may be given to transferring responsibility for the delimitation of constituencies to an independent boundaries commission.

Malaysia’s Electoral System and Representative Democracy

As discussed earlier, the reformist PH administration was toppled by an internal coup (Sheraton Move) just 20 months after GE14. While not stopping the reform measures, the two new administrations that came after did not pursue them with vigour. There were, however, three significant developments⎯the lowering of the voting age (Undi 18), automatic voter registration, and anti-hopping law. 

In July 2019, the Malaysian Parliament enacted a constitutional amendment to lower the voting age for general elections from 21 to 18, provide for automatic registration of voters, and reduce the qualifying age to 18 for contesting a seat in the federal or state legislature. The lowering of the voting age and automatic voter registration has added 6.23 million new voters to the electoral roll., bringing the number of voters eligible to vote in GE15 to 21.17 million⎯almost 66% of Malaysians. Ironically, as argued by Chai, lowering the voting age while expanding enfranchisement has been devalued by an even more unequal representation.^[29]

On October 5 2022, Malaysia’s new anti-hopping law (AHL) took effect. The AHL was enacted to address the issue of party hopping, as seen in the Sheraton Move that brought down the elected PH government. Party hopping has been a major problem in Malaysia since 1961. While there is consensus that AHL is a good development, concerns remain as there is a significant loophole where parties crossing the aisle are not punished.^[30]

The opening paragraph stated why an electoral system is fundamental to a democracy’s legitimacy. The issues with Malaysia’s electoral system, as captured in section II remain, despite the increasing competitiveness of the electoral contest. The critical issue that plagues Malaysian democracy is that elections are neither free nor fair. 

Beyond the recommendations provided by the Report of the Electoral Reform Roundtable in 208, serious work is being undertaken in Malaysia to reform the electoral system and other democratic institutions. Democratic backsliding⎯when core institutions are being weakened and manipulated by autocratically linked leaders⎯has occurred in Malaysia and many other countries.^[31] To address democratic backsliding, Malaysians must make wise choices at GE15.