Malaysia’s Democratic Hope: Proposals for Constitutional Reforms

The electoral victory of the opposition coalition in the May 2018 Malaysian elections offers unprecedented opportunities to strengthen Malaysian democracy. The adoption of constitutional reforms to enhance the independence of the judiciary and the Election Commission and to widen the scope of freedom of speech would be critical. Such progressive reforms would break the pattern of regressive amendments – writes Dr Jaclyn L. Neo.

Introduction

Before 9 May 2018, Malaysia had never experienced a change of government at the federal level. The same coalition – Barisan Nasional (National Front) (‘BN’) – that negotiated Malaysia’s independence from the British colonialists, has formed the federal government after every general election since 1957. That’s 61 years of political dominance. Granted, their political dominance had been gradually receding since the last political tsunami of 2008. Until then, not only did the ruling coalition consistently win the federal parliament, they always won with more than two-thirds majority of seats, except in the 1969 general elections. This was critical as amendments to Malaysia’s Federal Constitution require more than two-thirds majority (article 159). For a long time, the ruling coalition could and did freely amend the Federal Constitution of Malaysia, resulting in several key changes. Overall, these constitutional changes have empowered the central executive, undermined checks and balances, including the powers of the judiciary and other independent institutions, such as the Election Commission, and constrained fundamental rights. In 2008, BN lost their legislative super majority for the first time since 1969, and in the 2013 general elections, they lost the popular vote for the first time since 1969.

The 2018 elections were remarkable in the apparent attempts at voter suppression. First, polling day was fixed on a Wednesday, in the middle of a work week, making it difficult for voters to travel back to their respective constituencies all across Malaysia to vote. Secondly, an extremely short polling period of only 11 days from the nomination to polling day was set. Thirdly, a new political party led by Mahathir Mohamad, the leader of the opposition coalition and a former Prime Minister, was deregistered a mere week before the elections for supposedly not having submitted the right paperwork. Fourthly, whereas Malaysian overseas voters were able to vote at embassies around the world in the last elections, the Elections Commission decided this year that they would have to mail their votes back. This meant that overseas voters, numbering close to 8 000, had 11 days from nomination day to receive their ballot papers by mail and have them sent to their respective constituencies in Malaysia, by mail or courier, by 5pm on 9 May, and bear the mailing cost themselves.  

The deregistration of Mahathir’s party gave occasion to a rare show of unity among the opposition parties.

The attempts at voter suppression reinforced the growing discontent that the government was against, rather than for, the people. A small but significant social movement started, mediated over Facebook and other social media platforms, as Malaysians banded together to raise funds for fellow citizens who could not otherwise afford to return to their constituencies to vote, including organizing buses and carpools to get everyone home in time for the vote. Overseas voters also organized a network of ‘ballot mules’, who would collect the ballots from voters within their vicinity in Australia, Hong Kong, New Zealand, United Kingdom, United States, etc., and fly them back to Malaysia for further distribution by runners to the respective constituencies - an operation dubbed as Malaysia’s Amazing Race. These organic grassroots movements and other efforts to get the vote out inspired Malaysians to turnout in high numbers, despite the encumbrances.

In addition, the deregistration of Mahathir’s party arguably made voters more sympathetic to Mahathir and his ‘party’, but more importantly, gave occasion to a rare show of unity among the opposition parties. They agreed to run as a united front under the Parti Keadilan Rakyat (People’s Justice Party or PKR) banner as Pakatan Harapan (Alliance of Hope) (‘PH’). The irony that the PKR was founded by Mahathir’s former protégé to oppose him was probably not lost on him.

Mahathir implemented constitutional changes that seriously undermined judicial independence.  

After a long night of counting on 9 and 10 May, the new coalition won a convincing majority of parliamentary seats, with 113 out of 222 seats, as compared to BN’s 79 seats. PH also had the support of Warisan Sabah, which won 8 seats in the Federal parliament. PH’s win means that Malaysia now has a non-BN government, though it should not be overlooked that the leader of the new government, Mahathir Mohamad, is a former prime minister who was in power for 22 years and largely responsible for putting in place the centralized system of power that allowed the BN government to rule with impunity. He also implemented constitutional changes that seriously undermined judicial independence and orchestrated the removal of several superior court judges.  

Proposals for constitutional reform

The unprecedented change of government offers an opportunity to strengthen democratic constitutionalism in Malaysia. Mahathir has clearly stated that he wants to restore the rule of law and uphold the constitution in Malaysia. Strengthening judicial independence, enhancing electoral fairness, and removing core constraints on the freedom of expression should be key priorities for constitutional reform. As the new government does not have the two-thirds legislative majority to change the constitution unilaterally, any constitutional reform proposal would require cross-party support. Rationally speaking, such bipartisan or multiparty support could be forged since changes reinforcing constitutional democracy would benefit all parties. Now that no single party can be guaranteed of always being in power, each political party may see it in their interests to support efforts to strengthen Malaysian democracy.  

Each political party may see it in their interests to support efforts to strengthen Malaysian democracy.  

First, as a priority, the constitution should be amended to restore the coequal position of the judiciary. The Malaysian judiciary has been one of the targets of regressive constitutional change under the former ruling party, ironically adopted under the tutelage of Mahathir in 1988 seemingly in response to court decisions deemed unfavourable to the ruling party. A constitutional amendment purported to remove the plenary judicial review power of courts and to subject their jurisdiction to federal law. This apparently subordinates the judiciary to the legislature, which is inimical to the rule of law. The reforms also insulated the Syariah (religious Sharia) courts from the supervisory jurisdiction of the superior civil courts. Partly because of these amendments, the judiciary has on multiple occasions adopted a deferential approach to the executive and the legislature. Furthermore, with regards to matters relating to Islam, there was a tendency for the (civil) judiciary to defer jurisdiction to the Syariah courts, even though the Syariah courts are creatures of statute with limited jurisdiction conferred under sub-state legislation.

In a stroke of cosmic justice, who better to work towards restoring the prestige and confidence in the judiciary than the man (Mahathir) commonly blamed for destroying it?

To restore the authority of the judiciary as a coequal branch of government, the Constitution (article 121(1)) should be amended to re-establish the original wording in the pre-1988 version of the provision. As Raja Azlan Shah Ag CJ once declared in the Malaysian Federal (Supreme) Court, ‘[e]very legal power must have legal limits, otherwise there is dictatorship’. The judiciary plays a critical role in ensuring against the abuse of power and in upholding legal limits. Amending the constitution would reaffirm their position within the scheme of separation of powers in the context of constitutional supremacy. Furthermore, in a stroke of cosmic justice, who better to work towards restoring the prestige and confidence in the judiciary than the man (Mahathir) commonly blamed for destroying it?

Various changes since 1962 have undermined the independence of the Electoral Commission, including in relation to its power to draw electoral constituencies.

Secondly, another crucial entity that needs to be reformed is the Election Commission, which is a constitutional body constituted under article 113(1) of the Federal Constitution with the power to conduct elections, prepare and revise electoral rolls for such elections, as well as review the electoral boundaries and recommend changes. However, various changes since 1962 have undermined the independence of the Commission, including in relation to its power to draw electoral constituencies. This allowed the BN government to manoeuvre elections processes and delineation exercises to gain crucial advantages in elections. Previous proposals to move the line of accountability to parliament, rather than to the Prime Minister, had doubtful success. The Commission was heavily criticized for their apparent lack of independence even in the 2018 elections. Besides alleged attempts at voter suppression, the Commission was also criticized for rejecting a request by Malaysia’s national human right body to monitor the election. Instead, it appointed foreign observers and independent groups from Indonesia, Thailand, the Maldives, East Timor, Cambodia, Kyrgyzstan, Pakistan, Uzbekistan and Azerbaijan, which are not necessarily countries with mature democracies.

To ensure that the Commission is non-partisan and independent, it should be made absolutely and explicitly clear in law and through codes of conduct that it operates independently of the government of the day, and that its functions would be governed by principles of integrity, impartiality, accountability, and service to the democratic process. Furthermore, various reform proposals made by the grassroots organization – Bersih – should be addressed. The PH government should also follow through on various proposals previously made by their representatives to reform the electoral process, which includes automatic registration of voters, setting out a minimum campaign period of 21 days, and subjecting appointments of Commission members to parliamentary oversight. 

Restrictions on freedom of expression have prevented honest public discussion, even in Parliament, on a range of foundational issues, including racialized quotas.

Thirdly, laws, including the constitution, should be amended to create an enabling environment for robust discussion of important national issues. This should include a rethinking of constitutional provisions (article 10(4)) that provide the basis for restrictions on freedom of speech, introduced via constitutional amendments in 1971 following ethnic conflicts. These restrictions have prevented honest public discussion, even in Parliament, on a range of foundational issues, including racialized quotas for Malays and other natives (the Bumiputra, or sons of the soil - article 153) and the sovereignty of the Rulers. It may well be that robust discussions would show that most Malaysians support a continuation of racialized quotas and for the country to remain a constitutional monarchy. However, in the past, these laws and the constitution have been used to suppress any discussions of such issues, including legitimate debates. In parallel with any constitutional amendment effort, the government should work towards reforming or repealing several speech-restrictive laws. It would appear that a rethinking of the scope of freedom of speech is in the works, as Mahathir himself has indicated that the new government will review the Anti-Fake News Law that was passed several months ago and his new Communications and Multimedia Minister Gobind Singh Deo has promised that the law, among others, will be repealed. The Minister also declared that the new government will review several other rights-restrictive laws such as the Printing Presses and Publications Act, the Sedition Act, and the Malaysian Communications and Multimedia Commission Act. In addition,  the University and University Colleges Act, which has been used to restrict freedom of speech among university students, should also be reviewed.

Concluding remarks

The new political context in Malaysia provides fresh opportunities to reverse the regressive constitutional democratic trend over the years, and to strengthen legal and political constitutionalism in Malaysia. The constitution and the laws should be changed to better protect the rights of the people, and the democratic process. The reforms proposed here are certainly not comprehensive, and many more changes will need to be made to advance democratic constitutionalism in Malaysia. Nevertheless, these constitutional reforms would contribute to opening up the democratic space and ensuring the sustenance of Malaysia’s nascent democracy.

Many more changes will need to be made to advance democratic constitutionalism in Malaysia.

The new government will disappoint, sooner or later, and the people should remain vigilant in ensuring that politicians work in the public’s interest, and not simply their own. Nonetheless, the election is significant as it solidifies a reversal of the balance of power between the ruler and the ruled; the government and the governed. Whereas the previous BN government tended to be seen as acting as if it was their right to govern, the new government needs to remember and be constantly reminded that it was the Malaysian people who put them in power. The constitutional reforms proposed here would hopefully further put Malaysian democracy in good stead.

Jaclyn L. Neo is Associate Professor at the National University of Singapore’s Faculty of Law.