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Saturday, March 17, 2007

Electoral Reform

Polls Reform a Pressing Need

by Mavis Puthucheary

Once again "people power" has been effective in checking the abuse of power. In Bangladesh, mass demonstrations against the appointment of a member of the ruling party as head of the caretaker government resulted in the postponement of the elections and triggered action to introduce electoral reforms.

But while "people power" has been of immense value in getting rid of corrupt regimes, it is a weapon of the last resort, and one which can damage democracy in the long run. In a democracy the will of the people is ordinarily expressed through their elected representatives. Since the government represents the people, government action is, in a strong sense, authorised by the people. Yet in democratic ideology and practice, there is also a separation between the elected representatives and those they represent.

This is not to say there is no place for civil disobedience in a democracy. Only that the reality of democracy is often very different from the theory, and that an oligarchy long entrenched in power may use the idea of representation to justify egregious political repression. Under such conditions "people power" may be the only way to get rid of a corrupt regime. But there are better ways to ensure democratic integrity. For competitive authoritarian regimes like Malaysia that wish to improve the quality of their democracy, there are less disruptive options, notably electoral reform. In this constructive spirit, some weaknesses in our political system may be noted in some areas for electoral reform suggested.

Democracy as a system of separations

The question of modern liberty has been a major concern of Western political philosophers who sought to create political systems that would safeguard personal and political liberties. In a democracy, modern liberty is grounded in a system of separations which provides the necessary checks and balances upon the exercise of unlimited power. Over the years a multiplicity of such separations has evolved: the separation of professions (the division of labour), the separation of powers (legislative, executive and judicial in Montesquieu's scheme), the separation of church and state, the separation of civil society and the state, and the separation between the representatives and those they represent. The relationship of the representatives to those they represent depends not only on the mechanism of representation, namely the electoral system, including the election laws, the organisation and financing of political parties and so on. No less important is the "effectual" political system including the media and various financial and ideological power centres that actualise democracy, enable it to operate, and make it real.
Democracy, as rule by the people through their representatives, can only be made real and to work if people understand the idea of democracy and inhabit an environment that keeps them both informed and safe from government harassment. In short, their public and political liberties must be safeguarded. So, how does the Malaysian political system perform in safeguarding modern liberty? How does the separation of powers operate in the Malaysian context?

Separation of powers in parliament

The principle of modern political liberty advocated by Montesquieu was based on the separation of legislative and executive powers. Absolute separation is unachievable in parliamentary systems where the Executive emerges from yet remains based in the Legislature. In presidential systems such as the USA, greater separation is possible, since the president appoints executive or cabinet officers, with the consent of the elected, from outside the elected Congress.

While in parliamentary systems such as Malaysia's where the two are more closely interlinked, the principle of separation of powers still applies. Here it is sustained by the separation between the majority and the opposition within parliament. Although there is no sharing of formal political power between them, the fact that the majority can in time become the opposition and the opposition can be returned to power as the majority creates a situation where political liberties are protected. This role reversal is always in principle possible. Such a prospect may exert a restraining influence on the government and its majority, and often does.

The separation of majority and minority, government and opposition, also exercises a moderating influence in another way in parliamentary systems. Here the Executive is drawn from the Legislature, the people's elected representatives, and specifically from the members of the majority group or party. But the existence of a substantial, serious and legitimate opposition means the parliamentary majority, and the government based within it, cannot act, or claim to act, in the name or on behalf of parliament as a whole. The government cannot arrogate the authority or sovereignty of the parliament or represent its will as the will of the legislature as a whole. In this way the separation between majority and minority, government and opposition protects the formal separation of executive and legislative powers, the related yet distinctively different powers of legitimate official action and legitimate public voice. For this reason, the ability of an electoral system to produce a serious and responsible opposition is no less important to the fate of democracy than its ability to deliver a clear majority and an effective government based in it.

Although competitive elections are held in Malaysia, the same party has won all the elections since the country gained its independence. There has never been any historical reversal of roles between government and opposition. More, the ability of the political system generally, and the electoral system specifically, to produce any serious, credible and responsible opposition has been limited.

There are many reasons for this, not just one. But important among them has been that ethnic-based party politics has become the basic form and fact of political life in Malaysia. Where the governing inter-ethnic coalition exclusively embodies and so monopolises the undeniable claims of essential inter-ethnic conciliation and cooperation, and permits no other to emerge successfully, a three-party system has developed. The governing coalition occupies the middle ground embodying the principle of trans-ethnic accommodation. Opposition is polarised, with mutually incompatible ethnic-based opposition parties at each end of the spectrum, marginalised and isolated as "ethnic absolutists" or "chauvinist extremists".

In such a system, the opposition parties at each end of the spectrum find themselves having to compete with the party in the coalition that claims to represent the same ethnic group. As a consequence, opposition parties are driven to take extreme positions on issues affecting their ethnic clientele. This makes it very difficult for them to become truly multi-ethnic or join forces to form a united opposition to defeat the ruling coalition at the polls. At the same time, the exclusionary extremism and rhetorical excess to which they are in this way driven serve to shore up and give substance to the ruling party's claim to be not just a bulwark but the people's only plausible defence against ethnic mayhem. The problem here is that, just as some Western governments that claim to abhor gambling and its social effects become over-dependent upon the income that they derive from lotteries and horse-racing, so too may a government that justifies itself as its citizens' salvation from racial mayhem develop a vested interest in the continuity and strength of ethnic sentiments, and ever be tempted to invoke and even unwittingly amplify them.

Whatever, and however complex, its sources, the absence of a change of government in the Parliament does not augur well for the protection of liberty in Malaysia. Role-reversal between government and opposition, or at least the idea of its possibility and legitimacy, even normality, is fundamental to the strength of those separations, and to the maintenance of those distinct zones of proper action, upon which the liberties of modern citizens rest.

The federal factor

However, all is not lost. The Constitution provides for a federal system of government and for a separation or powers between different levels of government. It is at the state level that opposition parties have become majorities. But there are contradictions in our Constitution. For example, the terms of reference given to the framers of the Constitution were to provide for a "strong central government" within a federal structure. Yet, though there was a formal separation of powers between the centre and the states, many important matters, particularly those relating to finance and to procedures for amending the Constitution, gave very little autonomy to the states.

Central to the issues discussed here is the establishment of an Election Commission with wide jurisdiction to conduct elections at national, state and local government levels. Initially the commission had independent powers to make decisions concerning the allocation of parliamentary seats among the states based on the relative size of the population. But over the years this responsibility has been transferred to the parliament. So, too, have the commission's powers to delineate constituency boundaries been transferred to the parliament with its dominant majority and the now 50-year-long government grounded within that continuing parliamentary majority. Although delimitation of state boundaries is not within the jurisdiction of the parliament, since parliamentary and state boundaries are drawn up together they are part of the same package which goes to parliament for approval. This makes it difficult for the individual states to act as a check against abuses of federal power at the centre even in this matter of defining state electoral constituencies and their boundaries.

Caretaker government

Another form of separation of powers emerges in a more limited form when parliament or the state legislatures are dissolved and fresh elections are called. In order to ensure a more level-playing field and limit the powers of incumbency, constitutional convention provides for a caretaker government to be formed. The basic convention is that a caretaker government, while maintaining everyday life and social order, may continue to implement existing policies but may not initiate or announce any new policy measures. The contending parties may do so, as part of their platforms or election manifestoes, in their own names. But none should do so in the name, or with the backing of the moral authority and institutional resources, of the government and state.

In Malaysia this means very little as the same government has continued to remain in power. In consequence, there are no effective checks against any abuse of power. In some countries like Bangladesh, the constitution provides for a clear separation of powers between the independent caretaker government and the outgoing government. In Malaysia, in the absence of such constitutional checks, there is little that the Election Commission can do. The unfettered and continuing powers of incumbency make for an extremely uneven playing field, as well as for a further blurring of the boundaries between state, government and party. Rather than being underlined and strengthened during this period of "electoral interregnum", the institutional and domain separations that are essential to modern democratic liberty are only further confused as elections loom. Major abuses of state power are made to appear routine by the intertwining of official and party functions. In theory the King can refuse to act on the advice of the caretaker government in cases of blatant violation of these constitutional conventions, but in practice this is a dead letter.

Elections and legitimacy

Many of the checks and balances seen as important to protecting modern liberty in Western democracies are absent in Malaysia. This has adversely affected the quality of our democracy and, especially, the electoral process. The longer-term prospects, the continuing effectiveness, of any government are framed by its origins, its moment and process of birth. Why? The effectiveness of a government is largely a product of its legitimacy. And the legitimacy of any government is, in turn, largely an effect of the believability and hence integrity of the process, in this case the electoral process and system, that gave rise to it. So the electoral system and its plausibility are not just the foundation of modern democratic liberty. No less crucially, they underwrite the authority of the government and regime. You simply can't afford to have one that's defective, the object of public doubts and popular distrust.

Since elections are important tools to confer legitimacy and authenticate authority and so make government effective, public confidence in the electoral system is vital. From this, important consequences follow. It is not the mere holding of elections but the holding of free and fair elections that confers legitimacy on governments. The dilemma facing any competitive authoritarian regime like Malaysia's is how to win elections convincingly without undermining public confidence in the integrity of the electoral process to the extent that its own legitimacy and hence ability to rule are compromised, even undermined. When that happens it is not just the formal separation between the representatives and the people they represent that is compromised. Far worse, the real moral bonds and contract that in modern times conjoin government and people across that line of formal separation break down and people go to the streets to protest against the regime. We all have a vested interest in initiating political and electoral reforms before any such thing might happen here.

Dr Puthucheary is an academician focusing on Malaysian politics and administration, ethnic issues and the management of ethnic conflict.

The Sun, 12.3.2007