ON 18 April 2009, I sent in several proposals to the Election Commission on amending election law. One of these concerned amending Article 48(6) of the Federal Constitution so that an assemblyperson who wishes to change allegiance to another party can resign and hold a by-election.
Article 48(6) of the Federal Constitution states: “A person who resigns his membership of the House of Representatives shall, for a period of five years beginning with the date of which his resignation takes effect, be disqualified from being a member of the House of Representatives.”
There is a similar provision in every state in respect of state legislative assembly representatives; for example, Article 13(5) of the Penang constitution and Article 31(5) of the Perak constitution.
Currently, there is no provision in the Federal Constitution or any other law in our Malaysia that exempts the five-year ban.
Consensus before election
I do not agree with an assemblyperson being able to switch party allegiance without first obtaining the mandate from the people via a by-election. This is based on the principle of consensus before election.
As the assemblyperson was elected based on his/her individual capacity as well as his/her party’s standing (or being independent, as the case may be), it is only appropriate that any switch of his/her allegiance must receive the consent of the people in the constituency.
Can an assemblyperson in Perak resign in order to seek a fresh mandate from the people to switch parties through a by-election?
Based on the current law provided under Article 48(6) of the Federal Constitution and the respective state constitution, such an option is not possible as the resignation would mean that the assemblyperson would be disqualified from contesting in the by-election.
Some may argue that the assemblyperson should resign and let others serve the constituency. Such reasoning may be valid only if the assemblyperson no longer wishes to serve his/her people in the constituency. However, there is no such indication by any of the three assemblypersons in Perak who precipitated the constitutional crisis, namely Jamaluddin Mohd Radzi (Behrang), Capt (Rtd) Mohd Osman Jailu (Changkat Jering) and Hee Yit Foong (Jelapang).
(From left) Jamaluddin, Osman and HeeWould dissolving the state assembly in Perak solve the crisis?
Should the state assembly in Perak be dissolved to pave way for a fresh state election, the three assemblypersons can contest in their respective constituencies. Thus the people in their respective constituencies can decide whether they are agreeable to the switch of allegiance by the assemblypersons. However, the implications of holding a whole state election would be the substantial financial burden to the government, as well as other resources and the people’s time.
Dissolving the whole state assembly to solve an issue arising from three state legislative seats is akin to hitting an ant with a hammer. Instead, I am of the view that the crux of the problem in this crisis lies in the flaw of Article 48(6) of the Federal Constitution and the similar provision in the respective state constitution.
It would be better if the three assemblypersons be allowed to resign and seek a fresh mandate from the people to switch party allegiance.
Thus, I have proposed to the Election Commission to amend Article 48(6) of the Federal Constitution (and the respective state constitution) so that the five-year disqualification should not be applicable in cases where assemblypersons wishing to change parties (or renounce parties, as the case may be) want to resign in order to obtain a fresh mandate from the people.
Should there be a provision in law to prevent change of allegiance of an assemblyperson to a party?
In my opinion, an assemblyperson cannot be forced to align with any political party. The predominant duty of an assemblyperson is to serve the people in his/her constituency. The association of an assemblyperson with a political party should be construed as merely a form of assistance to the assemblyperson to better serve the people in his/ her constituency as a group.
Thus, should the assemblyperson view that the political party no longer able to assist the duty of the assemblyperson to serve the people, then it is only right that the assemblyperson reconsider his/her association with that political party. However, as said earlier, the assemblyperson should seek a fresh mandate from the people at his/her constituency based on the principle of consensus before election.
I am of the view that the Election Commission should recommend provisions in law to allow an assemblyperson to resign and seek a fresh mandate from the people in the event of change of allegiance to a party.
Prior to any amendments in law, attempts to resolve the Perak crisis would only be in the short-term interest and would be futile in the long term. I reckon it would be better if both leaders of the Barisan Nasional and Pakatan Rakyat worked together in reviewing the election laws in Malaysia and made the appropriate recommendations to the Election Commission for the benefit of Malaysians.
Tan Keng Liang
Kedah Youth Chief
Parti Gerakan Rakyat Malaysia
26 April 2009