Nimalan Devaraja recalls some exciting events around the 14th General Elections in Malaysia.
This article was first published in Issue 2/2018 of Legal Insights, a Skrine Newsletter. Reproduced with permission of Skrine.
May 9, 2018. A day that will be forever etched in the memories of Malaysians who witnessed the 14th General Elections (“GE14”). It was the day on which Malaysians witnessed, for the first time since the country’s independence, a change in government. The 61-year-old Barisan Nasional coalition (and its predecessor, the Alliance Party), long synonymous with Malaysia, were ousted from power by the barely two-year old Pakatan Harapan coalition.
While we have witnessed with excitement or trepidation (depending on who is asked) the rise of interesting (and possibly controversial) developments in the Malaysian fabric since the change of government, the period leading up to, and immediately after, GE14 was also not without its share of dramatic events. This article discusses several notable events that took place during this period.
1 MALAYSIAN-1 VOTE?
Delineation is the process of dividing the Federation of Malaysia into Federal Constituencies (222 as of now) and the further division of those Federal Constituencies into State Constituencies (save for the 13 Federal Territories Constituencies) for the purpose of conducting elections.
Article 113(2) (“Article 113(2)”) of the Federal Constitution (“FC”) mandates the Election Commission (“EC”) to review the division of the Federal and the State constituencies and recommend such changes as may be necessary to comply with the provisions of the Thirteenth Schedule of the FC (“Thirteenth Schedule”).
On 28 March 2018, a mere six weeks before GE14, the Dewan Rakyat (House of Representatives) approved, by the requisite simple majority, a re-delineation report prepared by the EC. The report had been finalised after the EC had issued two re-delineation proposals, the first in September 2016 and the second in January 2018. The re-delineation report that was approved was controversial for at least two reasons. First, from a timing perspective, it was tabled and approved in the Dewan Rakyat within one day, giving little time for debate notwithstanding the importance of the subject.
Second, the EC’s recommendations in the report significantly increased the disparity in the number of voters in some constituencies. For example, the number of voters in the Damansara Federal Constituency increased by 76.16% from 85,401 voters in the previous general election to 150,439 voters for GE14. In comparison, the Sabak Bernam Federal Constituency had 37,126 voters for GE14. This means that a voter in Sabak Bernam has a vote which is equivalent to 4.05 times of a voter in Damansara. The report came under heavy criticism from civil society on grounds that it exacerbated the malapportionment, seemingly in favour of the government of the day.
Critics of the re-delineation report argued that the report went against the principle of “1 Malaysian-1 Vote”, i.e. that each constituency should have an equal number of voters to allow for equal representation in government. It was also alleged that it did not comply with the guiding principles for re-delineation set out in the FC. We will now take several steps back to consider whether there is any legal basis for these allegations.
When the FC was first introduced on 31 August 1957, the parameters for a re-delineation exercise were set out in Article 116. Article 116(4) of the FC, among others, provided that the number of voters in each constituency shall be approximately equal after making due allowance for the distribution of the different communities and for differences in population density and means of communications but that such allowance shall not exceed 15%.
Article 116(4) was repealed and the parameters governing a re-delineation were transferred to a new Thirteenth Schedule pursuant to the Constitution (Amendment) Act 1962. The new Section 2(c) of the Thirteenth Schedule, among others, provided that the number of voters within each constituency ought to be approximately equal except that, having regard to the greater difficulty of reaching electors in the rural districts and the other disadvantages facing rural constituencies, a measure of weightage for area ought to be given to such constituencies “to the extent that in some cases a rural constituency may constitute as little as one half of the electors of any urban constituency”. This was the start of the erosion of the “1 Malaysian-1 Vote” principle as the permitted allowance of deviation had been significantly increased.
In 1973, the words “to the extent that in some cases a rural constituency may constitute as little as one half of the electors of any urban constituency” were removed from Section 2(c) pursuant to the Constitution (Amendment) (No. 2) Act 1973. This amendment meant that the EC was free to assign such weightage as it deemed fit to rural constituencies without any clear-cut limitation to the exercise of its discretion.
It therefore can be seen that from the outset, the idea “one person – one vote” was not an absolute principle enshrined in the FC as variances were permitted to give weightage to rural constituencies. However, there was, at the birth of Malaysia, an inbuilt safeguard to limit the difference in the number of voters between constituencies to ensure some measure of equality to the power of “one vote” of Malaysians. Unfortunately, this safeguard was removed 45 years ago by the constitutional amendments of 1973.
Even if one accepts that the EC now has unfettered discretion to determine the weightage to be assigned to rural constituencies, it is clear that the significant increase (76.16%) in the number of voters in the Damansara Federal Constituency from the previous general election has unjustifiably increased the difference in the number of voters between that constituency and the Sabak Bernam Federal Constituency, both of which are situated in the State of Selangor. This gives credence to the arguments that the re-delineation report has exacerbated the malapportionment contrary to the envisioned objectives of the exercise.
While it is impracticable for remote rural constituencies to have the same number of voters as some densely populated urban constituencies due to geographical and accessibility limitations, the “1 Malaysian–1 Vote” principle may become slightly closer to reality if the FC is amended to reinstate a permitted variance between these types of constituencies.
As Article 113(2) prescribes an interval of not less than eight years between the completion of one re-delineation review and the commencement of the next review, the next review under that provision can only be commenced in March 2026. Alternatively, the Government may trigger a review under Article 113A of the FC by increasing the number of members in the Dewan Rakyat, which has remained at 222 since 2003. As the number of registered voters has increased by approximately 36% since then, it may now be appropriate to increase the number of members in the Dewan Rakyat. However, this will require the support of not less than two-thirds of the members of the Dewan Rakyat and the Dewan Negara (Senate) as it entails an amendment to Article 46 of the FC.
RM 1,999 < RM 2,000<RM 2,001: THE MAGIC AMOUNT?
Chua Tian Chang, better known as Tian Chua, is a feisty politician. Among the many exploits that brought him fame or infamy, depending on which way one looks at it, was a sit-down protest before a water cannon truck of the riot police, reminiscent of scenes from the protests in Tiananmen Square, biting a policeman and most recently, uttering expletives at a police officer.
Arising from the most-recent incident, Chua was charged and convicted in the Sessions Court for outraging the modesty of a person under section 509 of the Penal Code. Chua was sentenced to a fine of RM3,000, which would have resulted in his disqualification as a Member of Parliament under Article 48(1)(e) of the FC (“Article 48(1)(e)”). On 2 March 2018, on Chua’s appeal, the High Court reduced the sentence to RM2,000 which appeared to allow him to avoid disqualification under Article 48(1)(e), and clear the path for him to contest in GE14.
However, Chua was in for a rude shock on nomination day when the returning officer (“RO”) rejected his nomination paper as a candidate for the Batu Federal Constituency where he had emerged victorious in the last two general elections. The reason for the disqualification, as reported in the media, was because the RO took the view that notwithstanding the reduction of Chua’s fine to RM2,000, Chua was still disqualified. The RO relied on regulation 7(1)(c) of the Elections (Conduct of Elections) Regulations 1981 which, among others, requires the RO to reject the nomination paper of any candidate on grounds that the candidate is disqualified from being a member of the Dewan Rakyat under the FC.
Article 48(1)(e), the constitutional provision which lies at the heart of this conundrum, disqualifies a person from being a Member of Parliament if he has been convicted of an offence and sentenced to imprisonment for a term of not less than one year or to a fine of not less than RM2,000. Thus the question is whether “a fine of not less than RM2,000” includes or excludes a fine of RM2,000.
From a literal reading of Article 48(1)(e), it seems that a fine of RM2,000 would disqualify Chua from contesting in GE14. However, those in Chua’s camp relied, not on a plain reading of the provision, but instead on the Supreme Court case of Public Prosecutor v Leong Yee Ming  2 CLJ 143. In that case, Gunn Chit Tuan CJ (Malaya) upheld the prosecution’s appeal against the decision of the High Court to grant bail to a person charged under Section 39A(2) of the Dangerous Drugs Act 1952 (“DDA”) despite Section 41B of the DDA prohibiting bail from being granted for offences punishable with imprisonment for more than five years. Gunn CJ (Malaya) considered that the words “be punished with imprisonment for life or for a term which shall not be less than five years” in Section 39A(2) of the DDA clearly and unequivocally meant that the offence is punishable with imprisonment for more than five years i.e. five years and one day up to a maximum imprisonment for life, and therefore the offence was non-bailable.
The decision in Leong Yee Ming was relied on by the High Court in Chua Tian Chang v Pendakwa Rakyat (Rayuan Jenayah No: 41-175-2009), where Chua had appealed against his earlier conviction for biting a police officer. While upholding the conviction, the High Court Judge reduced the fine imposed on Chua from RM3,000 to RM2,000, after taking into consideration the fact that Chua would be disqualified as a Member of Parliament if a higher fine was imposed on him. According to the Judge, the amount of RM2,000 stated in Article 48(1)(e) was just a guideline which would not cause Chua to lose his eligibility automatically, an event which would only occur if the fine was for RM2,001 and above. This position was also relied on by the High Court Judge in Chua’s most recent conviction.
Chua’s attempt to salvage the situation by filing a suit in the High Court on 2 May 2018 to seek a declaration that he is entitled to contest in GE14 and that his nomination for the Batu Federal Constituency be accepted was unsuccessful as the Court ruled on 4 May 2018 that the challenge should be by way of an election petition pursuant to Article 118 of the FC.
Chua initially appealed against the High Court decision but subsequently withdrew the appeal. According to Chua’s counsel, his client proposes to commence new court proceedings to clarify whether he is eligible to stand for future elections and will not challenge the results of the elections in the Batu Federal Constituency which was won by Chua’s newly adopted ‘protégé’, P. Prabakaran, a fresh-faced 22-year-old law student who had initially stood as an independent candidate.
Chua’s setback in GE14 raises two legal issues. First, whether a fine of RM2,000 imposed on a person upon his conviction triggers off a disqualification under Article 48(1)(e). Second, whether a RO is entitled to disregard the decisions of the High Court and disqualify a candidate’s nomination on his own accord. It remains to be seen whether the new proceedings which are to be filed by Chua will address both of these issues or only the first issue.
Earlier news reports have also suggested that Chua had voiced his intention to file a representation to the Attorney General’s Chambers for clarification as to whether a Member of Parliament could be disqualified for being fined RM2,000 for an offence. It is unclear whether Chua will still be pursuing this course of action. Even if the Attorney General issues the opinion sought by Chua, the legal effect of such an opinion remains questionable.
THE TUSSLE FOR LEADERSHIP IN KEDAH AND PERAK
The Pakatan Harapan coalition won 18 seats in the Kedah State Assembly (50%) while Parti Islam Se Malaysia (“PAS”) secured 15 seats and the Barisan Nasional coalition, three seats. This meant there was no party which held a simple majority in the State Assembly.
Article 37(2)(a) of the Kedah State Constitution provides that the Sultan of Kedah shall appoint as Menteri Besar (Chief Minister) a member of the State Assembly who in his judgment is likely to command the confidence of the majority of the members of the State Assembly.
As no single person commanded the confidence of the majority of the members of the State Assembly, the Sultan of Kedah exercised his judgment to appoint Datuk Seri Mukhriz Mahathir of the Pakatan Harapan coalition as the Menteri Besar on the basis that his coalition had the single largest bloc of members in the State Assembly.
While the impasse over the selection of the Menteri Besar has been resolved, it will be interesting to see how the Kedah State Government will function without a majority of representatives in the State Assembly.
In Perak, no party managed to secure even 50% of the 59 seats in the State Assembly. The Pakatan Harapan coalition won 29 seats (one shy of a simple majority), whilst the Barisan Nasional coalition won 27 seats and PAS weighed in with three seats.
Despite the Pakatan Harapan coalition garnering the most seats, the former Barisan Nasional Menteri Besar of Perak, Dato’ Seri Dr Zambry Abdul Kadir, announced two days after GE14 that the Barisan Nasional coalition had obtained enough seats to form the State Government. Dr Zambry also announced that he would be seeking an audience with the Sultan of Perak to be sworn in as the Menteri Besar pursuant to Article 16(2)(a) of the Perak State Constitution by reason that he commands the confidence of the majority of the members of the State Assembly. It was rumoured, although unconfirmed, that the assemblymen from PAS had agreed to support the Barisan Nasional coalition, thus giving them a total of 30 out of the 59 seats in the State Assembly.
However, before Dr Zambry could be sworn in, two assemblymen from the Barisan Nasional coalition declared their support for the Pakatan Harapan coalition. This enabled the Pakatan Harapan Menteri Besar candidate, Ahmad Faizal Azumu, to command a simple majority of 31 seats in the State Assembly as compared to the 28 seats held collectively by the Barisan Nasional coalition and PAS, and consequently be appointed as the Menteri Besar. The Barisan Nasional assemblymen concerned were thereafter sacked by their party (UMNO), with one opting to join Parti Pribumi Bersatu Malaysia, a member of the Pakatan Harapan coalition, while the other remains as an independent for now.
The defection of the two assemblymen seems to be poetic justice as the defection of three assemblymen from Pakatan Rakyat (the forerunner to the Pakatan Harapan coalition) in 2009 led to the collapse of Pakatan Rakyat government and the emergence of Barisan Nasional as the ruling coalition in Perak after the 12th General Elections in Malaysia a decade ago.
THE TALE OF TWO CHIEF MINISTERS, YET AGAIN
Readers of LEGAL INSIGHTS may recall an intriguing piece in Issue 1/2015 entitled “Bargaining in a Bazaar” which recounts the dramatic events that occurred in the aftermath of the Sabah state elections in 1985. It was a tale of late night visitors, unwelcomed guests and political intimidation, ultimately leading to a landmark case where the High Court had to determine whether the leader of the defeated United Sabah National Organisation (a component of the Barisan Nasional coalition) or the victorious Parti Bersatu Sabah was the legally appointed Chief Minister of Sabah.
Thirty-three years later, history seems to have repeated itself. As news trickled in of the results of the Sabah state elections early on the morning of 10 May 2018, it became clear that Sabah could have a hung Legislative Assembly. The Warisan/Pakatan Harapan informal coalition and the Barisan National coalition had each won 29 seats. The Sabah STAR party won two seats and effectively assumed the role of “kingmaker”.
The leader of Sabah STAR, Datuk Seri Dr Jeffrey Kitingan, threw his support behind the Barisan Nasional coalition. Seizing the opportunity, Tan Sri Musa Aman, the leader of UMNO Sabah had himself sworn in as the Chief Minister in the late hours of 10 May 2018 pursuant to Article 6(3) of the Sabah State Constitution on the basis that he commanded the confidence of the majority of the members of the Legislative Assembly.
However, a few hours later, in the morning of 11 May 2018, news broke that two state assemblymen from UPKO had, together with their party, pulled out from the Barisan Nasional coalition to throw their support behind the Warisan/Pakatan Harapan coalition, giving the latter a simple majority in the Sabah Legislative Assembly. Adding salt to the wound, four UMNO assemblymen also defected to the Warisan/Pakatan Harapan coalition, giving the informal coalition a 10 seat majority in the Legislative Assembly. Now commanding the confidence of a clear majority of the members of the Sabah Legislative Assembly, the leader of Warisan, Datuk Seri Mohd Shafie Apdal, sent a letter to the Yang di-Pertua Negeri (Head of State) containing the declarations from the assemblymen who supported him.
After meeting the said assemblymen, the Yang di-Pertua Negeri determined that it was now Shafie who had the confidence of the majority of the members of the Legislative Assembly and swore him in as the Chief Minister of Sabah. This was despite denials issued by Musa that he had resigned as the Chief Minister, notwithstanding that he had been commanded to do so by the Yang di-Pertua Negeri.
A constitutional crisis loomed. On the face of it, it seems that Sabah has two concurrent Chief Ministers, appointed two days apart. Drawing parallels with the 1985 crisis, the Yang di-Pertua Negeri lodged a police report alleging that a senior Sabah Barisan Nasional leader had made threats against him in the hours leading up to the swearing in of Musa as Chief Minister.
Musa filed a writ action in Court seeking a declaration that he is the legitimate Chief Minister of Sabah and that the swearing-in of Shafie on 12 May 2018 was unconstitutional. Musa has since withdrawn his writ action and filed a fresh originating summons seeking in essence the same declarations.
The starting point for analysing this battle to be anointed as the Chief Minister of Sabah is Article 7(1) of the Sabah State Constitution, which provides that “if the Chief Minister ceases to command the confidence of a majority of the members of the Legislative Assembly, then, unless at his request the Yang di-Pertua Negeri dissolves the Assembly, the Chief Minister shall tender the resignation of the members of the Cabinet”.
In Datuk (Datu) Amir Kahar Tun Datu Haji Mustapha v Tun Mohd Said Keruak & 8 Ors  1 CLJ 184, where the issue was whether the then Chief Minister, Tan Sri Joseph Pairin Kitingan, had lost the command of the majority of the Sabah Legislative Assembly, the High Court held that “the evidence that a Chief Minister ceases to command the confidence of the majority of members of the Assembly for the purpose of Article 7(1) of the Sabah Constitution, may be found from other extraneous sources than to be confined to the votes taken in the Legislative Assembly provided that, that extraneous sources are properly established”.
More recently, a similar situation arose in Perak after the 12th General Elections. There, as alluded to above, the then Chief Minister of Perak, Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin, had lost the majority support of the Perak State Assembly following the defection of three of his coalition members which resulted in 31 out of 59 assemblymen supporting the Barisan Nasional coalition. The Sultan of Perak met the 31 assemblymen who confirmed their support for the Barisan Nasional.
The Sultan advised Nizar to resign but instead of doing so, the latter requested for a dissolution of the Perak State Assembly and for fresh elections to be held. The Sultan of Perak declined Nizar’s request and appointed Dr Zambry from the Barisan Nasional coalition as Chief Minister.
Nizar commenced legal proceedings, seeking a declaration that he was the rightful Menteri Besar of Perak. The Federal Court in Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin v Dato’ Seri Dr Zambry Abdul Kadir; Attorney General (Intervener)  2 CLJ 925 interpreted Article XVI(6) of the Perak State Constitution (which is similar to Article 7(1) of the Sabah State Constitution) and held, in line with Datuk (Datu) Amir Kahar, that “evidence of loss of confidence in the MB may be gathered from other extraneous sources provided, as stated in Akintola (a decision of the Privy Council that arose from Nigeria), they are properly established. Such sources, we think, should include the admission by the MB himself and/or representations made by members of the LA that the MB no longer enjoys the support of the majority of the members of the LA.”
Contrary to the decisions in Datuk (Datu) Amir Kahar and Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin, the High Court in Stephen Kalong Ningkan v Tun Haji Openg and Tawi Sli  2 MLJ 187, had earlier held that under Article 7(1) of the Sarawak State Constitution (which is similar to Article 7(1) of the Sabah State Constitution), the lack of confidence in a Chief Minister can be demonstrated only by a vote in the Council Negeri (State Assembly).
Although the Court in Stephen Kalong Ningkan expressed reservations as to whether the Governor of the State could dismiss a Chief Minister who refuses to resign, the Federal Court in Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin unequivocally held that a Menteri Besar who has lost the confidence of the majority of the member of a State Assembly is deemed to have vacated his office if he refuses to resign.
It remains to be seen whether the Court, in the proceedings initiated by Musa, will follow the principles laid down in Datuk (Datu) Amir Kahar and Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin or in Stephen Kalong Ningkan. Even if the Court rules in favour of Musa, it may only delay the inevitable given that the informal coalition supporting Shafie now holds a 10 seat majority in the Legislative Assembly.
About the Author
Nimalan Devaraja is a Senior Associate in the Dispute Resolution Division of Skrine. He graduated from King’s College London with a LLB (Hons) degree in 2010 and was called to the English Bar (Inner Temple) in 2011. Upon returning to Malaysia, he was admitted as an Advocate & Solicitor in the High Court of Malaya in October 2012 and thereafter commenced his legal practice with Skrine. His main practice areas include Arbitration and Constitutional Law, Public and Administrative Law.