Will another by-election simply be a waste of money, as the prime minister has said?
THE impending Penanti by-election has raised the question about whether elected representatives and their political parties ought to be penalised for “frivolous” resignations.
But just who determines what is frivolous? And how should the public interpret statements such as those by Prime Minister Datuk Seri Najib Razak that the Barisan Nasional (BN) might sit out of the polls because contesting would be a waste of public funds?
Indeed, there is election fatigue among the political parties, and perhaps even among voters. But one should distinguish between the BN’s right to contest or not, and their insinuation that the Penanti by-election is a “political ploy”.
Several BN quarters have criticised Parti Keadilan Rakyat (PKR) for seeking publicity through a by-election, for burdening the rakyat, and over the invalidity of the reasons cited by the resigned representative, Mohammad Fairus Khairuddin.
Following Najib’s statement, Election Commission (EC) deputy chairperson Datuk Wan Ahmad Wan Omar said the time was ripe to amend existing laws to prevent abuse by political parties that force their representatives to resign for personal or party reasons. He said the rakyat should not be made to bear the cost of having a by-election.
Wan Ahmad Elaborating further, Wan Ahmad suggested a need for laws that would determine how a seat vacancy is caused. He says “logical” causes of vacancies would include death of the elected representative, illness that renders the representative unable to serve, criminal conviction by the courts, or the reasons for disqualifications as listed in Article 48(1) of the Federal Constitution.
“But if a resignation is on purpose due to internal party problems, poor planning by the party, or even personal problems, such problems should not burden the people,” Wan Ahmad told the The Nut Graph.
Kedah Gerakan Youth chief Tan Keng Liang, in a press statement on 21 April 2009, came up with two proposals to penalise assemblypersons “resigning without good reasons”.
He said current laws have no provisions that punish the party of the resigned representative to make them more responsible in selecting future candidates.
As such, Tan has proposed that the party of the resigned representative should be disqualified from contesting in that particular seat for five years from the date of the resignation.
This would be an extension of Article 48(6) of the Federal Constitution which bars an elected representative who resigns from his or her seat from contesting for the next five years.
Tan Keng Liang However, Tan adds that other parties from the same coalition as the penalised party should not be barred from contesting.
Secondly, Tan proposes a monetary penalty of RM50,000 for each assemblyperson and RM100,000 for each Member of Parliament who vacates his or her seat for reasons other than death, illness or other circumstances that render the assemblyperson unfit to serve.
But he doesn’t believe the punishment should be as severe for party-hoppers based on the principle of freedom of association. “If the resignation is to seek a fresh mandate from the people for the representative to join another party or coalition, the monetary penalty should be halved,” he said.
Additionally, he also says that the current five-year ban from contesting in an election should be lifted so that party-hoppers can get a fresh mandate from voters for joining another party.
Right to resign
Lawyer Edmund Bon believes such proposals will be impossible to enforce. The constitution does not stipulate that reasons for resigning must be given.
“How would it be possible to determine whether the reasons for resigning are genuine or not?
Edmund Bon“If a representative has a personal problem, say allegations of corruption in Penanti’s case, and knows his [or her] service will be hampered, is he [or she] not resigning for the right reasons?”
Bon, who is the Bar Council’s new chairperson for its constitutional law committee, adds that the current penalty of banning a resigned representative from re-contesting for five years is sufficient, and even regressive.
“That clause is one of the reasons why representatives party-hop when the moral thing to do is to run again on a different ticket to let voters decide.”
Bon adds that if Fairus’s resignation was really due to PKR’s internal problems, voters should be allowed to “punish” PKR though a by-election.
“In this way, PKR is forced to get its act together. Let voters decide, and not a body like the Election Commission or the government by having more laws,” says Bon.
The BN’s right
Universiti Malaya associate professor in administrative studies and politics, Dr Terence Edmund Gomez, cautions against getting caught up with the political finger-pointing between BN and PKR over the Penanti by-election.
Shahrir Samad “Elected representatives don’t simply step down for no reason. There has been no instance in history except for (Datuk) Shahrir (Abdul) Samad, who stepped down on principle. After that, the BN enacted the five-year ban against contesting.
“In the Penanti case, I think the elected representative correctly stood down to deal with the allegations of corruption. Under such circumstances, it’s only proper to have a by-election.”
As such, the democratic principle of a representative’s right to quit, and the voters’ right to choose, should be set apart from rhetoric about frivolous resignations.
Taking the EC to task, Gomez adds, “If Najib says BN doesn’t want to contest, then that is the BN’s right. It won’t make a difference to the fact that Penang is still run by the opposition. So there is no reason for such comments by the EC that we must now look at more laws to determine the reason for resignations.”