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Anti-hopping laws versus five-year ban

WHEN Jelapang assemblyperson Hee Yit Foong left the DAP to become an independent supporting Barisan Nasional (BN), some of her constituents cried, “We didn’t vote for her, we voted for her party!”

That was the mildest of angry sentiments expressed on the night of 5 Feb 2009 at the Perak Menteri Besar’s official residence, where people had gathered to rally for the dissolution of the state legislative assembly. Earlier the same day, Sultan Azlan Shah had accepted the new BN government and given MB Datuk Seri Mohammad Nizar Jamaluddin the sack.


Members of the rakyat protesting outside the Perak MB’s residence on 5 Feb 2009

Jelapang constituents felt betrayed because Hee deserted the party they supported. But the issue also points to a problem in the law, which prevents elected representatives from testing their act of defecting against the wishes of the people.

There have been renewed calls for an anti-hopping law, but would that really be the solution? Perhaps it’s time for a law that promotes responsibility by encouraging reps to get approval for their defections or resignations from the electorate.

Hopping via resigning

The defections of Hee, Jamaluddin Mohd Radzi (Behrang) and Mohd Osman Jailu (Changkat Jering) cannot be prevented because the courts have deemed anti-hopping laws unconstitutional, because they are in violation of the freedom of association.

But in “more mature democracies”, as Pakatan Rakyat politicians like to say when comparing Malaysia with other countries, their defections would still have necessitated by-elections.

It would be assumed that, as mature politicians, the three defectors would have solid reasons to justify their switching parties, such as major differences with their own party on policy issues that affect the rakyat.

They would be honourable enough to resign from their seats, and allow their constituents to decide on their actions through a referendum, by re-contesting in by-elections on a BN ticket.

There has only been one time such honour was displayed: in 1988, when Johor Baru Member of Parliament (MP) Datuk Shahrir Abdul Samad resigned from his seat and stood in a by-election as an independent, and won.

Shahrir’s resignation was to protest against what happened in Umno between then party president Datuk Seri (now Tun) Dr Mahathir Mohamad and his challenger Tengku Razaleigh Hamzah. The showdown led to the 1988 constitutional and judicial crisis.


Najib, with Osman (red tie), Jamaluddin (striped tie) and Hee (front)

A law that encourages crossovers

What Shahrir did cannot be repeated today. His resignation as an Umno MP and re-election as an independent led to the constitutional amendment in 1990 to incorporate Article 48(6). It bans elected representatives from standing in elections for five years upon their resignation from a state assembly or Parliament.

“It prevents elected reps from suka hati resigning and causing by-elections as they cost money, time and logistics. You cannot have a by-election just because you’ve got problems in your own party, so you want to resign.

“The BN prefers having a sanction on simply having by-elections except for death or bankruptcy. You cannot have an election just to test your popularity,” Minister in the Prime Minister’s Department and de facto law minister Datuk Seri Nazri Aziz tells The Nut Graph.

But fundamentally, Article 48(6) is the reason crossovers are viewed negatively, says Parti Keadilan Rakyat (PKR) vice-president R Sivarasa.

“Reps are not given the choice of resigning and going back to the people for re-election. So they’d rather change parties than vacate their seat and not be able to re-contest.”

He believes that if not for Article 48(6), “a lot of by-elections would happen. Reps would be using that to walk away from BN.”

Principled hopping?

Sivarasa’s comment reflects Pakatan Rakyat (PR)’s justification of crossovers in the run-up to the 16 Sept 2008 deadline to take over the federal government.

If a rep is switching parties for “principled reasons”, and not because of inducements or threats, that, in PR’s reckoning, is justifiable.

Penang PKR Youth chief Yusmaidi Yusoff argues that a rep is “morally obliged to follow positive change if given the signal from the people”.


Wheee! Playing leapfrog (Scott Maxwell / Dreamstime)
“For example, at one time, people see the BN as the best option; but over time, people want change. Are you saying, on that score, the rep cannot jump? His jump must be based on the principle that it is for the change that people want. He should not jump based on personal interest,” says the Balik Pulau MP, who is a lawyer.

“Until today, Jelapang, Behrang and Changkat Jering have not provided any concrete reason as to why they decided to leave Pakatan Rakyat that concerns the electorate,” he adds.

Are there double-standards in the law somewhere? The freedom of association argument is used to shoot down calls for an anti-hop law. So elected reps have the freedom to party-hop, but Article 48(6) appears to punish them if their resignation is based on principles, like in Shahrir’s case.

Morality of hopping: let voters decide

Both the BN and PR agree that amending Article 48(6) will not stop party-hopping. But since political defections are viewed suspiciously, whatever the reasons may be, the PR believes the five-year ban on re-contesting should be lifted to let the people decide who they want as their elected reps.

Perak DAP chairperson Datuk Ngeh Koo Ham believes there is a moral hierarchy between the electorate’s right to vote and an individual’s freedom to associate or disassociate.

“In common law, we always say public policy overrides private rights. Party-hopping is a betrayal of voters’ trust, and this is more serious than the private right to associate,” says the senior executive councillor in the Perak government.

Ngeh says lifting the ban in Article 48(6) will satisfy both a rep’s freedom to associate and the people’s right to choose. “The rep will be able to go back to the people again who will decide whether they want him in this or that party.”

Nazri counter argues that in Malaysian elections, the people tend to vote more for the party and less for the candidate. “The law bars the rep from re-contesting, but their party can put up another candidate in a by-election,” he says.

Sivarasa, however, believes it is presumptuous to allow Article 48(6) to stand on the basis that most people vote along party lines.

The underlying principle of amending the ban would be to let the people decide whether a resignation or a crossover is justifiable. The financial and political cost of holding by-elections should also force defectors or those resigning — and even parties engineering these moves behind the scene — to think about their intensions carefully.


Nazri

Both PKR and the DAP support amending Article 48(6). They however differ on the need for an anti-hop law, with the DAP in favour of it.

The BN, says Nazri, prefers the status quo: no anti-hop law, and no amendment to Article 48(6) either.

If any change were to be made, Nazri suggests that Article 10(c) on the limits that may be placed on the freedom of association be amended to define party hopping as immoral.

“If you don’t make it a law, the morality of party-hopping remains debatable. At the moment, even though it’s immoral, it’s still my constitutional right. Morally, not good, but legally, I can do it,” Nazri says.

Sivarasa’s rebuttal: “That’s a classic authoritarian response. We should be strengthening the articles that encourage democracy, not weakening them. The answer is not amending freedom of association, but removing the ban on elected reps from re-contesting.”


Sivarasa
The reality, however, is that any possibility of amending Article 48(6) soon is as remote as BN and PR forming a unity government.

Sivarasa adds that in the current climate, where PR contends that its elected reps are under coercion to join the BN through threats and bribes, it is more important that state institutions like the police and anti-corruption authorities be truly independent.

“The crossovers or resignations we’re seeing now are due to pressure or bullying of politicians using state institutions. We need to prevent abuse of state institutions by the ruling government,” he alleges.

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4 Responses to “Anti-hopping laws versus five-year ban”

  1. Singam says:

    (Datuk Seri Nazri Aziz) believes that if not for Article 48(6), “a lot of by-elections would happen. Reps would be using that to walk away from BN.”

    And that’s the truth of it. But the sad part is, PR do not have the means to lure away BN representatives, whether with carrots or sticks. So if a BN representative were to walk, it is likely to be on a matter of principle. The reverse cannot be said to be true, in the light of the Perak defections.

    By a force of 2/3 majority in parliament, the BN has deprived the people of their right to choose which party they want to represent them. This is just one of the many constitutional amendments that have to be reversed before full democracy can be restored.

  2. fongmrs says:

    I agree with Siva and Ngeh, also that the reps who hop must give viable reasons.

    If fresh mandate from electorate is made compulsory, then our elected reps would not be pressured or blackmailed into defection; and could not be induced into corruption for self-interest.

    So bottom line is: fresh mandate is a must!

  3. Capt Sudhir says:

    Freedom of association and an elected representative’s mandate are two distinctly differing issues. The anti-hopping laws can be constructed and named differently. Make it a law that if an elected representative wants to switch his/her allegiance then a switch can only be made after a public referendum in that constituency is held and that at least 70% of the constituents agree to the switch. If the constituents do not agree then the elected representative will have to resign and switch parties (if it is his or her personal believe to do so).

    In this way his personal freedom is not affected and the people’s mandate will be upheld. Why is this difficult to do? The political parties themselves can write this charter into their M&A. People’s mandate should be the holy grail of any political party, in essence that they exist to serve the people hence they should respect the people’s mandate. Why can’t this be chartered into the Societies Act for political parties?

  4. The issue I feel is getting lost is: it is in the public’s interest to know why the three PKR reps defected. We need to know right now. The EC and the press aren’t doing their jobs, to say nothing of a “more mature democracy”. If they were induced, they (or the ones responsible, if they hopped against their will) should be brought to task. I get the sense that the freedom of assocation argument is being used to silence these kinds of queries, which sets a dangerous precedent: the malicious application of freedoms to take freedom away. I think Datuk Ngeh’s statement broaches this subject, but doesn’t quite say it. It doesn’t help that he uses terms like “moral hierarchy” and “common law” — not sure what he is trying to prove.

    It is harmful that the discussion to change the law is happening at the same time as the Perak controversy. Perak presents a specific set of circumstances that needs to be considered before we move on to the bigger topic of reform.

    Han


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