Written by: Averroes
(1.0) Introduction
Some time ago, the MP for Pengerang, Datuk Seri Azalina Othman Said called upon for the Recall Elections Act or Bill. This would put halt to decades of political turmoil and vicissitudes throughout the test of time of our nationhood. She also proposes to present it in Parliament.
In effect, the said statute would be one of an alternative as to provide a brevity for voters and a reassurance that their mandate would be returned from defected MPs. If an MP were to switch political allegiance (betrayal), or a political schism were to erupt, then voters are able to elect new MPs to replace them.
Afterwards, then a by-election could be held to elect a new MP. If a MP cannot be loyal and serve the interest of the people that they selected them, then they are irresponsible and must be ousted. They are accountable and answerable to people that have chosen him. It is a mandate that he must aspire.
The Recall Elections Act, a Private Member's Bill motion in Bahasa Malaysia is titled as 'Rang Undang-Undang (RUU) Pemecatan Ahli Parlimen 2021'. Many individuals have been advocating and expressing their support for the Bill, including Bersih 2.0 and Transparency International Malaysia.
The practice of party-hopping became very rampant, during the 'Perak 2009 Constitutional Crisis', many decided decisions in Sabah (you may read an article on party-hopping, caretaker and command of majority here). It boiled to the point when in early 2020, we saw party members switching political camps, where Tun. Dr Mahathir resigned.
The situation in late 2021 is different, there was no party-hopping, but rather just a retraction of support from Tan Sri Mahiaddin Yassin and a slight reshuffle of the cabinet. Below, we shall discuss in depth on the legal basis of the proposed Act or Bill.
(2.0) Legal Analysis
(2.1) Case Laws and Provisions
According to article 10(1)(c) of the Federal Constitution, it stipulates that "all citizens have the right to form associations."
Therefore, a law that prohibits party-hoping may be unconstitutional as every person has the right o join any party that they prefer. However, it could be constitutional if, they were to betray their constituents.
Switching political parties and destroying the mandate of the people are two different issues. Destroying the mandate of the people by dishonouring their trust and vote has nothing to do with the freedom to form associations.
Article 48(1) of the Federal Constitution (disqualification for membership of Parliament) could also be amended to include that, whoever betrays the mandate of their constituents or party-hop shall be disqualified from either House of Parliament.
In the Supreme Court decision of 1992 in Dewan Undangan Negeri Kelantan v Nordin Salleh [1992] 1 CLJ 343: [1992] 1CLJ 463, it was enunciated that the amendment to the Kelantan Constitution, which prohibited party-hopping was inconsistent with article 10(1)(c) of the Federal Constitution, which permits freedom of association.
(2.2) Legal Opinions
Bersih 2.0: Party-hopping takes in many forms and has a long set of actions by the perpetrating MP. This would include voluntary resignation from party, expulsion from party, defying party's instruction in legislative voting, party merger, deregistration of party and joining a party.
They state that, if party-hopping were to occur, then switching sides must be done with the 'consent of the voters' or that the defecting MP must vacate his seat. This is what Edmund Burke once said that MPs are trustees rather than delegates to their constituents.
Though, they state while there is still the Supreme Court decision in 1992 (Nordin Salleh), which annuls party-hopping laws in Kelantan and Sabah for the States, even if an anti-hopping law exists at the Federal Level, there may be a legal friction to extend it to the states because of that precedent.
Without departing from the Supreme Court precedent or amending the Federal Constitution with 2/3 majority votes, to restrict party-hopping, then an anti-hopping law would not be applicable to the states, or even face repercussions of being ultra vires, unconstitutional or nullified. A another example was in Penang 2012 which experienced the same problem.
Bait Al-Amanah: In a survey conducted by the Centre of Governance and Political Studies (Cent-GPs), it is staggering that 46% of Malaysian respondents are not keen on politics due to the dramatic scenes of party-hopping.
The survey also measured, what punishments to respondents favour. When asked,43% agreed that they should be barred from future elections. 34% said that they should vacate his seat. 14% said that a fine should be imposed, while 8% states that he should be jailed.
They supported the Recall Elections Act, that with this law, constituents or voters could vote to remove their MP after switching sides and have a new MP. This has come to be known as 'recall referendum, recall petition or representative recall.'
It involves a long procedure, it initiates with the circulation of petitions by the recall organisers, evaluation of signatures by election officials, and then a public vote if the petitions are deemed to have valid signatures.
The Recall Elections Act does not necessarily have to apply to party-hopping situations, but also when the MP is involved in controversial issues, such as corruption charges, gross incompetence, neglect of duties, serious misconduct or misdeamenour, poor governing performances, and that they fail to uphold the constituents rights on pertinent issues.
(3.0) Is party-hopping and switching allegiance at all bad?
In 1774, Edmund Burke also once told his constituents that, "You choose a member indeed; but when you have chosen him, he is not member of Bristol, but he is member of parliament."
Winston Churchill, a few days before his resignation as Prime Minister in 1955 also states that; "The duty of a member of Parliament to his constituents, of whom he is the representative, but not the delegate."
What this entails is that, even if constituents voted him, he is not responsible to the people per se, but only Parliament. Also, since we touched upon that if MPs go against their own government could also be liable for the Recall Election Act, there is an exception.
In the UK for instance, a MP independence is the tradition of backbench revolt, where the government backbenchers have the liberty to vote against their own government's bills and motions, unlike other ministers who belong to the minister frontbench such as ministers (Cabinet Collective Responsibility and known as Payroll Vote.).
(4.0) Conclusion
To conclude, by formulating the Recall Elections Act, those who are given the mandate by the people through elections could not betray them. They are answerable and accountable to his constituents. Defecting to another political party amounts to a ravish molestation of the people's mandate.
Defection is not the only offence, warranting action or punishment through a new by-election, paying fines or imprisonment or risk of vacating his seats and barred from future election contest. (unless the constituents consent to it.)
Corruption charges, gross incompetence, neglect of duties, serious misconduct or misdeamenour, poor governing performances, and failing to uphold the constituents rights on pertinent issues, are grounds for punishment under the Recall Elections Act. A procedure is required to oust him out of office and call for the said by-elections.
Hence, to distinguish between 'Party-Hop Law' and the 'Recall Elections Act', the author believes everyone can still party-hop and change sides, because it is part of a human's expression and political belief, a branch of fundamental liberties. However, if it is done at the expense of damaging the people's mandate, that is a different issue altogether and must be liable under the Recall Elections Act.
(5.0) References;
Ida Lim. (September, 2021) Azalina proposes new law for recall elections if MPs defect, plans Private Member’s Bill. Retrieved from, https://www.malaymail.com/news/malaysia/2021/09/01/azalina-proposes-new-law-for-recall-elections-if-mps-defect-plans-private-m/2002078
TheSunDaily. (September, 2021) TI-Malaysia supports tabling of Private Members Bill for Recall Elections Act. Retrieved from, https://www.thesundaily.my/local/ti-malaysia-supports-tabling-of-private-members-bill-for-recall-elections-act-AK8279626
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