Why S'wak redelineation is unconstitutional

This is important. (Originally published in Malaysiakini, by Wong Chin Huat)

Why Sarawak redelineation is unconstitutional

Contrary to the understanding of the Election Commission (EC) and many politicians on both sides of the divide, the electoral constituency redelineation process is not to be dictated by the EC and parties it involves with in behind-the-scene negotiations.

The EC is just the proponent of the redelineation plan (termed “recommendation” in thefederal constitution), which is to be ultimately approved by the Parliament (Dewan Rakyat), after members of the public scrutinise and provide feedback or objections (termed “representation”) on the EC’s plans.

1   What does the federal constitution’s 13th Schedule say?

All these are stipulated in the 13th Schedule of the federal constitution.

1.1     What is to be on display?

Section 4 of the 13th Schedule stipulates that
“Where the Election Commission have provisionally determined to make recommendations under Clause (2) of Article 113 affecting any constituency, they shall inform the Speaker of the House of Representatives and the Prime Minister accordingly, and shall publish in the Gazette and in at least on newspaper circulating in the constituency a notice stating -

(a) the effect of their proposed recommendations, and (except in a case where they propose to recommend that no alteration be made in respect of the constituency) that a copy of their recommendations is open to inspection at a specified place within the constituency; and

(b) that representations with respect to the proposed recommendations may be made to the Commission within one month after the publication of such notice,
and the Commission shall take into consideration any representation duly made in accordance with any such notice.”

1.2   Who can object?

Who are the stakeholders qualified to make “representations” in this short one-month period? Section 5 defines them to be:

“(a) the state government or any local authority whose area is wholly or partly comprised in the constituencies affected by the recommendation; or

(b) a body of one hundred or more persons whose names are shown on the current electoral rolls of the constituencies in question”

What happens after submission of representations? The EC is supposed to organise “local enquiries”, in which “the Election Commission shall have all the powers conferred on Commissioners by the Commissions of Enquiry Act 1950”, as stipulated by Section 6.

In other words, these inquiries are meant to be of the same rigour with those called by royal commissions of inquiries (RCIs). They are not meant to be public relations shows.

1.3   What are the grounds for objections?

Now, on what grounds can state governments, local governments and groups of 100 or more affected voters raise objections?

This is clearly stipulated in Section 2:

“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 -

(a) while having regard to the desirability of giving all electors reasonably convenient opportunities of going to the polls, constituencies ought to be delimited so that they do not cross State boundaries and regard ought to be had to the inconvenience of State constituencies crossing the boundaries of federal constituencies;

(b) regard ought to be to the administrative facilities available within the constituencies for the establishment of the necessary registration and polling machines;

(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;

(d) regard ought to be had to the inconveniences attendant on alterations of constituencies, and to the maintenance of local ties.”

Conditions in 2(a) and 2(b) have never been violated because that serves no parties’ interests. The key contentions are always with the compliance of sub-sections 2(c) and 2(d).

The phrase “approximately equal” in Section 2(c) invalidates malapportionment except for the ground of “greater difficulty of reaching electors… and other disadvantages facing rural constituencies”, which basically means transportational and communicational challenges.

The phrase “maintenance of local ties” then invalidates gerrymandering. The EC cannot simply break up local communities and put people with little commonalities into a constituency.

2    What information is constitutionally needed in the redelineation display?

To allow for public feedback – by state and local governments and affected voters – as per Sections 2, 4 and 5, clearly the EC’s redelineation proposal must contain sufficient information for the following tasks to be possible.













By definition, redelineation is simply re-organising voters into new geographical divisions, corresponding to new arrangements in electoral roll.

Technically, electoral maps show three layers of division: parliamentary constituency, state constituency and polling district (housing estates, villages, etc). This corresponds to the organisation of voters in electoral rolls, with one more layer, namely, locality (streets, apartments, etc).

The parliamentary constituency, state constituency and polling district have their code numbers.

For example, polling district Rajang Park where Najib made his infamous “you help me, I help you” offer is currently coded as 2124801, which stands for P212 Sibu (parliamentary constituency), N48 Pelawan (state constituency) and 01 Rajang Park (polling district).

2.1 “The effect”

“The effect of (the EC’s) proposed recommendations” as stipulated in Section 5(a) is therefore not just a state-wide map of Sarawak divided into 31 parliamentary constituencies and 82 state constituencies, and a list of voter numbers in each of the parliamentary and state constituencies and polling districts. That is “recommendations”, not the “effects”.

The “effects” mean “changes” or “differences” between the proposal and the status quo. The “effects” can be known from:

(a) An exhaustive list of changes to the geographical boundaries and areas (in square kilometres) of polling districts, state constituencies and parliamentary constituencies;

(b) Constituency maps – in the same format as those used in elections – with the proposed boundaries overlaid on polling district, administrative, physical and infrastructural boundaries: and

(c) “Proposed” electoral rolls to be used should the redelineation proposal be accepted.

2.2     Affected Voters

The voter can only know if he or she is affected by first knowing which constituency he/she is in and with whom he/she will share the constituency. Without the “proposed electoral roll” and the detailed maps, he/she cannot ascertain this.

2.3    Malapportionment

Assessing if all constituencies in the state are “approximately equal”, one needs only the electorate size of parliamentary and state constituencies. To assess if the malapportionment is constitutionally compliant, namely if there is no alternative to avoid excessively small constituencies, one  would need on-map information. Information on landmass of constituencies also helps to ascertain the need for under-sized constituencies.

2.4    Gerrymandering

To mount a reasonable challenge to suspected cases of gerrymandering which violates the “maintenance of local ties” condition under Section 2(d), one must have the detailed maps and electorate size up to the polling district level.

Without sufficient information listed as in Table 1 above, the voters will not be able to effectively participate in the redelienation process. One day they are not supplied with the necessary data and map, one day in the precious one-month period is wasted.

Tomorrow: Part II - Information the EC is holding back

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WONG CHIN HUAT earned his PhD on the electoral system and party system in West Malaysia from the University of Essex. He is a fellow at the Penang Institute, and a resource person for electoral reform lobby, Bersih 2.0.

 

Triple whammy for Sarawak's old guard

AN UNHAPPY NEW YEAR FOR SARAWAK'S OLD GUARD

[An important development and a huge step forward for indigenous rights In Sarawak. Congratulations to NCR lawyers - especially Baru Bian - and their hardworking team].

Original story from MALAYSIAKINI

Sarawak's political elite have accumulated power and startling wealth by taking over land from native communities, but now face the prospect of setbacks in the new year.

The entrenched ‘old guard’, accustomed to holding undisputed control over public life, may be struck by a triple whammy.

Firstly, the courts have overturned several ministerial decisions to award land to crony companies. Land minister James Masing has branded critics of Sarawak's land policies as "arrogant and ignorant", but judges have disagreed in several prominent cases, granting local villagers’ Native Customary Rights (NCR) claims to land taken over by the government.

Secondly, the new media has exposed ‘get-rich-quick’ land schemes to the world – and crucially, to many Sarawakians previously force-fed a steady diet of propaganda by state-owned television RTM and local newspapers.

Thirdly, the ruling political class is now confronted with the prospect of losing the majority of the urban Chinese-dominated seats in Kuching, Sibu, Miri, Sarikei and Bintulu, and even a sizeable number of rural Dayak seats in the upcoming state election to the Pakatan Rakyat.

Political observers are predicting a BN loss of a dozen urban seats, and a similar number of suburban and rural seats. This would be the largest swing since the BN consolidated its power in the 1991 state election, after nearly being replaced by the now-defunct Parti Bansa Dayak Sarawak (PBDS) and Permas in the 1986 ‘Ming Court Affair'.

'Parade of federal leaders'

Commentators have even speculated that Chief Minister Taib Mahmud may step down immediately before the state election, and allow his deputy Alfred Jabu to lead a caretaker government.

This is seen as a potential last-ditch attempt to defuse criticism of Taib's financial and land deals, both within and outside the BN, a bold gambit that would remove Taib as the prime target for a Pakatan campaign.

However, other observers point out this ‘shock' scenario would lead to vicious and potentially insoluble infighting within the state BN since Taib has traditionally imposed his control over the factions in his PBB by playing off political rivals in the party against one another.

Until now, BN leaders have forged a united front, backing Taib to lead them into the election, saying he is the ‘glue' that keeps the BN together.

"There has been a groundswell in recent months in northern Sarawak: (Sarawak PKR chief) Baru Bian is expected to win in Ba'kelalan," an influential Sarawak politician told Malaysiakini, "so there's been a parade of federal BN leaders visiting Lawas and Limbang, including (information minister) Rais Yatim and (deputy premier) Muhyiddin Yassin this month, and (premier) Najib Razak next month.

"These visits have produced headlines like ‘Lawas may get a new airport' or ‘Plans afoot for a new hospital' or ‘Malaysia ready to build bridge at Pandaruan in Limbang' – they must be terrified of Baru Bian winning," he said.

Baru Bian (right) is from the minority Lun Bawang ethnic group in a state made up entirely of ethnic minorities. He was raised in Ba'kelalan, a hilly, poor region upriver from Lawas.

Baru Bian, then an independent candidate, lost in Ba'kelalan to Nelson Balang Rining of the BN by 475 votes in the last state polls in 2006. He then mounted an unsuccessful election petition seeking to nullify the result; in his petition, he alleged Nelson Balang and his agents had resorted to vote-buying by giving cash to voters.

'Game changing’ rulings

Baru Bian and a handful of other land rights lawyers have been responsible for a string of recent landmark rulings in NCR cases against the state government. The judgments have returned forests to native Iban, Malay and other landowners throughout Sarawak, following intrusion by logging or plantation business interests with powerful backers in the government.

"These cases are changing the game," says Muhin Urip, a native land rights advocate. "These rural people are showing real courage, standing up to the state government, and to the big bullies in the logging sector. They've shown no fear, even after they were harassed by gangsters, by police and by the authorities."

The NCR judgments hinged on the native plaintiffs demonstrating that they had cleared or used land, for dwellings, fruit trees, burial sites or shrines, or usual rights of way to their farms or cemeteries, before the beginning of 1958.

The state government has insisted that the onus of proof lies squarely on the native communities themselves. Aerial photographs dating from colonial times have been invaluable in helping native villagers win their NCR lawsuits.

The Federal Court, the highest legal authority in Malaysia, has recognised that forests reserved for hunting and collecting produce, or ‘pulau’, and the territorial area in which the forest is located, or ‘pemakai menoa’, fall under the realm of NCR.

But the state government has not, to date, altered its land policies.

High-profile Penan lawsuits

Over the past decade, Baru Bian has taken on several high-profile Penan NCR battles, including a new Ba Jawi lawsuit announced last week.

However, the Penan have yet to win a pivotal legal decision, similar to those obtained by the Malays and Ibans in Sarawak, and the Orang Asli in the peninsula.

This is because Penan NCR claims are complicated by the fact that most of the 12,000 to 15,000 Penan have only settled in the last few decades. The Penan were mainly nomadic, with precious few permanent crops or dwellings, before 1958.

But lawyers for the Penan argue their NCR claims are no different from other communities', since the Penan also rely on the forests for their food and survival. They say the traditional Penan practice of ‘molong’, putting aside forest resources for shared use, is almost identical to the Iban custom of preserving ‘pulau’ for communal use.

"By and through their customary practice, mostly characterised as ‘molong’, tribal groups of the nomadic Penan lived in and within distinct territories. Traditional dwelling huts called ‘lamin toro’ were left behind as distinct marks of earlier settlements," the Ba Jawi plaintiffs said, in their statement of claim to the High Court.

"Ba Jawi Penans, like the 200-plus communities who have taken companies and the Sarawak government to court for NCR land rights, are being forced to seek the judgments for justice and for the people's rights to be defended," said See Chee How, a lawyer for the Ba Jawi villagers.

"Beyond the court case, the untold sufferings of the Ba Jawi people and others in similar cases mustn't be hidden. Land to the native people isn't just property, it's a crucial aspect of the living history of the community, and very much the lifeline of the people."

Land rights and elections will certainly contribute to an intriguing new year in Sarawak.

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KERUAH USIT is a human rights activist - ‘anak Sarawak, bangsa Malaysia’. This weekly column is an effort to provide a voice for marginalised Malaysians. Keruah Usit can be contacted atkeruah_usit@yahoo.com.

Slow action made Malaysia complicit in murders?

NGO: Malaysia 'guilty' of Myanmar killings

(http://www.malaysiakini.com/news/283065)

An international Myanmar activist finds it quite shocking that the Penang police have not immediately responded to the killings of Myanmar nationals, which has been taking place since January.

"Is it because they are inefficient, slow to act because it involves migrants and asylum-seekers?" Altsean-Burma coordinator Debbie Stothard asked in an interview with Malaysiakini.

"These murders and the murderers deserve to be condemned and prosecuted," said Stothard, who is also International Federation for Human Rights secretary-general.

So far 18 Myanmar nationals have been killed, with their body parts dismembered, while police have arrested 17 people in connection with the murders.

Last Friday, police raided a house on Jalan Kampung Pisang, Bukit Mertajam, believed to be where the slaughtering of the Myanmarese took place.

Malaysiakini visited the crime scene on Monday, and found many of the villagers living in fear of the gruesome incidents in their neighbourhood.

While the authorities did not rule out revenge, they have denied that the killings were due to religious conflicts.

It is learnt that the killings have been taking place since January this year but police responded publicly only after English daily The Malay Mail reported on the spate of killings on Sept 18.

Stothard said migrants and asylum seekers in Malaysia were hardly convinced of the importance of the rule of law due to the way they were treated.

"When people feel they cannot rely on local authorities to protect them from violence and discrimination, it becomes easy to create a vigilante response," she said.

Malaysia is also guilty of allowing Myanmar to perpetuate "an extreme system of impunity and violence" on its own people, Stothard said.

Revenge murders an acceptable response?

This system encourages its people to think that revenge murders are an acceptable response to the genocidal situation faced by the Rohingya community, she added.

The Rohingya, a Muslim minority persecuted for decades in Myanmar, have been fleeing the country, seeking asylum in Malaysia and elsewhere.

Stothard called on Malaysia to be courageous enough to take a firm stand on combatting the violence in Burma and insisting on the protection of civilians from all backgrounds.

Most ethnic and religious minorities, such as the Rohingya, Kachin, Chin and Muslims from other ethnic groups, have no hope of protection against violence in Myanmar, she added.

Thousands of them have been killed, kidnapped, raped or have disappeared without any trace, she noted.

She said the Rakhine Action Plan, promoted as a solution to the problems in Arakan state, did not help either.

It will see up to a million Rohingya locked up in camps indefinitely, while another 100,000 of them  will be given third class citizenship and forced to live in segregated "freedom", she added.

Malaysia and the rest of the Aseam countries will bear the consequences of their decades-long reluctance to deal honestly with conflict and systematic and widespread violations in Burma, she said.

"If migrants and asylum seekers feel safe and respected, it becomes easier for them to prevent and constrain violence in the community," she said.

"These murders are deeply shocking, but not surprising. In some ways, the behaviour of our regional governments made them inevitable.

"Persecuting more asylum-seekers will not make things any better. It will only increase the conviction that the system cannot be relied on for protection," Stothard added.

AG: Social contract basis for nation-building

The 900-pound gorilla in the room. 

AG quoting former LP and Sultan of Perak Azlan: "....a unique document without any parallel anywhere."

The question is, even if it were historically true that the Malaysian Constitution was realised with a bias for Malay Society and the sultanate, does this constitute 'special rights' that relegate minorities into a shrinking public space? 

Which civillised country modern economy separates and classifies its citizens in this way and then tell them to be happy they are 2nd class? I mean, if we are all equal taxpayers, does it not make sense that we should enjoy equal benefits and equal constitutional protection? 

AG: Social contract basis for nation-building

[From Malaysiakini]

Attorney-general Abdul Gani Patail reminded Malaysians the need to abide by the “social contract” developed by the country’s forefathers.
 
“Open any history book on Malaysia and it will recount that Malaysia’s communal approach to politics and social and economic structure today is the legacy of the British system of governance in Malaya,” said Gani in his keynote address at a national law conference last week.
 
Quoting Edmund Burke who said, “Those who don’t know history are destined to repeat it”, Gani emphasises the need to learn from the past.
The Chinese and Indians were brought in because the Malays did not want to engage in modern economy in 19th century Malaya, he explained.
 
“It has its genesis in the segregation of ethnic migrant workers according to sectors of work,” Gani said in his paper titled ‘Current challenges in preserving social order and national harmony - a critical note’ delivered at the Judicial and Legal Training Institute conference.
 
The Chinese and Indians were brought in because the Malays did not want to engage in modern economy in 19th century Malaya, he explained.
 
“It has its genesis in the segregation of ethnic migrant workers according to sectors of work,” Gani said in his paper titled ‘Current challenges in preserving social order and national harmony - a critical note’ delivered at the Judicial and Legal Training Institute conference.

“When the general Malay population refused to work with the British in the tin mines and rubber plantations - the two most important and profitable exports of the country in the late 19th century - the British encouraged the immigration of labourers from China and India to work in these sectors, as well as in public infrastructure works, rails and roads.
 
This, he said, resulted in the concentration of Chinese population in the towns and Indians in the rubber estates. Malays, mainly in the rural areas, were involved in the agricultural and fishing sectors.
 
The top-most legal officer in the country said the British were not interested in integration then and instead, encouraged the Chinese and Indian immigrants to pledge their loyalty to their homeland.
 
“As a collorary to the foreign workers Malaysia depends on today, Malaya was only to be considered “tanah tumpahnya peluhku” - the land where I toil for wealth without more.
 
“But when China fell to the communists and India was wrecked with poverty, the Chinese and Indian immigrant workers decided they should stay permanently for a better future,” he said.
 
Seeds of polarisation
 
Referring to World War Two as a great equaliser, Gani said when Japan attacked Malaya, the population under British rule took up guerilla warfare.
 
However, he said polarisation resurfaced after the war, following the state of emergency which was called then to address communist insurgency.
 
Preventive action was taken where Chinese are placed in new villages, with Malays and Indians forming the security forces.
 
With the coming of independence in 1957, Gani said there was marked disparity among the races economically and in education and other sectors.
 
Malays, he said, had no capital wealth and their participation in the modern economy was almost non-existent, even among the aristocratic class.
 
“The Chinese had become the main participant in the economic and commercial sectors while the majority of Malays remained in the rural areas.
 
“The lucrative modern industries and services sectors remained Euro-centric. Poverty, especially among the Malays, was widespread and the income inequalities between the races a matter of serious concern for the new, young government.”
 
Following the disparity, he said the “social contract” was mooted to achieve balance that underpins the relevant provisions in the Federal Constitution drafted by the Reid Commission.
 
Gani recalled what the late Perak sultan and former lord president Sultan Azlan Shah (right) had said of the “social contract” at the Malaysian Law Conference in 2003.
 
Azlan had said inherent differences had to be accommodated into a constitutional framework which recognised the traditional features of Malay society with the sultanate system at the apex of the Malaysian Constitution.
 
“Thus, there was produced in August 1957 a unique document without any parallel anywhere. It adopted the essential features of the Westminster model and built it into the traditional features of Malay society,” Azlan had said.
 
Respect 'social contract'
 
“This constitution reflected a social contract between the multiracial peoples of our country. Thus, matters of citizenship for the non-Malays, the Malay language, and special privileges for the Malays and the indigenous peoples of Malaysia were safeguarded and given the added protection of requiring the consent of the Conference of Rulers before change could be effected to them,” the Perak ruler said.
 
Azlan had added that it is fundamental in this regard that the Federal Constitution is the supreme law of the land and constitutes the grundnorm (basic norm) to which all the other laws are subject.
 
“This essential feature of the constitution ensures that the social contract between the various races of our country embodied in the independence Constitution of 1957 is safeguarded and forever ensures to the Malaysian people, as a whole, for their benefit.”
 
Gani said the value of the “social contract” elements that we have inherited should never be underestimated or undermined.
 
“It must be appreciated that these elements in the Federal Constitution were engineered by the Alliance in consultation with the Malay Rulers as the best solution to protect the interest of the groups concerned.
 
“This in particular includes the trade-off between the granting of citizenship for the Chinese and Indian migrants for recognition of the special Malay rights.
 
“Similarly the protections for the customary aboriginal rights of the indigenous peoples are consciously entrenched in the constitution,” he said.
 
The top government lawyer said measures should be taken to observe the ideals established in the constitution - in letter and in spirit, whether it is concerning religion, citizenship of non-Malays, the special rights of Malay/bumiputera and the Orang Asal or the special position and privileges of the rulers or the rights conferred on Sabah and Sarawak.
 
He adds all these rights must be respected and implemented unless and until the Federal Constitution is amended by a vote or referendum of the people.
 
"This is because all these are elements of the ‘social contract’ and constitute the basic pillars of the Federal Constitution and Malaysia."