COMMENT | Why recall elections and not anti-hopping law?
COMMENT | It is important to get both the diagnosis and prescription right.
While party-hopping is a real threat to both political stability and the legitimacy of parliamentary democracy in Malaysia, the anti-hopping law advocated by many since the 1980s is the wrong remedy, more than just because of the constitutional hurdle by a 1992 court verdict.
Anti-hopping law’s problem 1: Constitutionality
Rather well-known, the first problem with anti-hopping law, including the anti-hopping provision (Article 14A) in the Penang State Constitution, is constitutionality.
In 1992, the Federal Court ruled that a similar provision (Article XXXIA) in the Kelantan State Constitution as null and void because it infringes the freedom of association, enshrined by Article 10(1)(c) of the Federal Constitution, of elected representatives. This hurdle can be overcome in two ways.
The first remedy is a different interpretation of Article 10(1)(c) by the judiciary. Human rights lawyer Andrew Khoo has pointed out that in 2009, the Federal Court had affirmed Section 46A(1) of the Legal Profession Act 1976 that prohibits office-bearers of political parties from election to the Bar Council as “reasonable restrictions”.
The second remedy is a constitutional amendment to Article 10(1)(c) to explicitly list disqualification due to party-hopping as an exception. As constitutional amendment needs a two-thirds majority, it becomes a cul-de-sac. If most parties can agree to penalise party-hopping, it would not have become widespread.
However, even if the Federal Court now affirms Penang’s anti-hopping provision, it will still run into two other problems.
Anti-hopping law’s problem 2: Rubber-stamp legislature
The second problem concerns check and balance in a parliamentary system: an effective anti-hopping law will make legislatures more rubber-stamps of the executive than they are today.
As in the Penang case, effective anti-hopping laws must disqualify both elected representatives who voluntarily quit their parties and those involuntarily sacked. Such coverage, however, would allow parties to firmly control their lawmakers...
COMMENT | It is important to get both the diagnosis and prescription right.
While party-hopping is a real threat to both political stability and the legitimacy of parliamentary democracy in Malaysia, the anti-hopping law advocated by many since the 1980s is the wrong remedy, more than just because of the constitutional hurdle by a 1992 court verdict.
Anti-hopping law’s problem 1: Constitutionality
Rather well-known, the first problem with anti-hopping law, including the anti-hopping provision (Article 14A) in the Penang State Constitution, is constitutionality.
In 1992, the Federal Court ruled that a similar provision (Article XXXIA) in the Kelantan State Constitution as null and void because it infringes the freedom of association, enshrined by Article 10(1)(c) of the Federal Constitution, of elected representatives. This hurdle can be overcome in two ways.
The first remedy is a different interpretation of Article 10(1)(c) by the judiciary. Human rights lawyer Andrew Khoo has pointed out that in 2009, the Federal Court had affirmed Section 46A(1) of the Legal Profession Act 1976 that prohibits office-bearers of political parties from election to the Bar Council as “reasonable restrictions”.
The second remedy is a constitutional amendment to Article 10(1)(c) to explicitly list disqualification due to party-hopping as an exception. As constitutional amendment needs a two-thirds majority, it becomes a cul-de-sac. If most parties can agree to penalise party-hopping, it would not have become widespread.
However, even if the Federal Court now affirms Penang’s anti-hopping provision, it will still run into two other problems.
Anti-hopping law’s problem 2: Rubber-stamp legislature
The second problem concerns check and balance in a parliamentary system: an effective anti-hopping law will make legislatures more rubber-stamps of the executive than they are today.
As in the Penang case, effective anti-hopping laws must disqualify both elected representatives who voluntarily quit their parties and those involuntarily sacked. Such coverage, however, would allow parties to firmly control their lawmakers.
If a lawmaker can be compelled to vote for a bill which she has rigorously argued against, what is the point of having a parliamentary debate?
Hence, in the UK where stable majority governments are a norm, ‘backbench revolt’ which may frustrate the government’s legislative agenda but won’t topple the government is widely tolerated. Only ministers and deputy ministers – dubbed payroll vote – are obliged to always vote in line with the government’s line.
When Labour was in power from 1997 to 2010, Jeremy Corbyn (below) voted against the government party’s whip order from backbench for a total of 428 times or an average of 33 times annually. He was never sacked or denied candidacy.
This is in stark contrast in Malaysia where government backbenchers did not even have the freedom to abstain on an opposition’s motion that embarrassed the government.
In our zeal to stop party-hopping, do we really want our legislatures worse rubber-stamps than they are now when governments become stable again?
Anti-hopping law’s problem 3: Trinity in the mandate
The third problem with anti-hopping laws is simply that they are not for countries like Malaysia with permanent coalitions with a First-Past-The-Post (FPTP) system, where a vote is a trinity in the mandate - for candidate, party and coalition.
So, when a party leaves a coalition, as in the case of Bersatu leaving Pakatan Harapan, should the representative stay with the party or with the coalition? Does it affirm voters’ mandate if Mahathir and four other MPs sacked by Bersatu, instead of Muhyiddin’s gang, lose their seats?
The mismatch of anti-voting law and Malaysian politics is most manifest by the inconvenient application of the Penang’s anti-hopping law. If the two Bersatu state assemblypersons can be disqualified, so must their 19 colleagues from DAP and two from Amanah, since the all Harapan candidates in Peninsular Malaysia stood under PKR’s ticket in 2018.
What’s wrong with party-hopping?
This forces us to examine what is really wrong with party-hopping.
Are we opposing all instances of party-hopping (or party-quitting) even if when a party goes against the constituents’ wish and the representative stands by her constituents against her party?
Are we opposing parties changing coalition, for which there should be a law against coalition-hopping?
Clearly, a reasonable opposition against party-hopping should be more specific and may be boiled down to only two principles: first, preservation of voters’ mandate; second, preservation of opposition to avoid one-party rule, a powerful point made by Umno’s ex-minister Abdul Rahman Dahlan in a seminar organised by Sabah Bersih.
How do we know what voters’ mandates are?
The simple solution is to allow voters to vote for parties instead of candidates, either fully or partly. Then seats won by parties belong to parties and cannot be transferred when representatives change party.
If we want to retain our FPTP electoral system partly or fully, then voters’ mandate can be protected through recall elections, which I shall elaborate.
If we want to reduce the temptations for lawmakers to jump over rewards as kingmakers or government’s cheerleaders, then both discrimination against opposition lawmakers in funding and government’s power to reward with fat pay in government-linked companies must be stopped.
And we need more politicians like Dahlan to make healthy multiparty competition possible.
Recall elections – Voters’ right to fire politicians
If normal elections are to hire politicians, recall elections are to fire them.
In normal employment contracts, both employers and employees are allowed to fire each other provided with prior notice, normally a month or two. In Malaysian politics, however only lawmakers can fire their boss by resignation, voters have to continue paying the lawmakers who jump party or sleep on the job.
For thousands or tens of thousands of bosses to a sack a lawmaker, the recall mechanism must spell out a few aspects: grounds to recall, permissible period to initiate a recall (not too close to the last and next elections), and most importantly, the thresholds to move the process.
Normal recall elections are found in at least 19 states in the US, British Columbia in Canada, Japan, Taiwan, the Philippines, Switzerland, Ukraine and Peru. The UK also has recall elections but they vastly different.
Take Taiwan as an example. Earlier on June 6, Han Kuo-Yu was recalled as the major of Kaohsiung by voters who were unhappy that he contested for presidency within months after winning his mayoral mandate.
Taiwan’s law requires the verified signatures of 1% electorate to initiate a recall petition and another 10 percent (collected within two months) to endorse before a recall election is held. This requirement of support from one in every nine voters prevents abuse of the mechanism.
Next, to sack an incumbent and have a by-election, not only those who agree must exceed those disagree, but they must also pass the third threshold, 25 percent of the electorate.
This threshold was initially criticised by Han’s (above) supporters as too low, as the 25 percent threshold would translate into 574,996 votes, much lower than the 892,542 voters Han won in 2018.
Theoretically, a low turnout by his supporters could see him being ousted by fewer voters who staunchly opposed him. However, the “yes” votes reached 939,090, resolving the question of legitimacy. The by-election will take place on Aug 15.
Recall elections in Malaysia can emulate Taiwan in the first two thresholds, one percent for initiating and 10 percent for endorsement. For the third threshold, I would propose it to be higher than Taiwan’s, 50 percent of all registered voters or the total of voters won by the incumbent, whichever the lower.
Recall elections can penalise lawmakers who defect against the voters’ blessing but spare those whose defections are approved by voters. This stabilises political parties while allowing necessary realignment at a time like now.
Unlike anti-hopping laws – whether federal or state – that require the amendment or reinterpretation of the Federal Constitution, recall elections at the state level can be done by amending the state constitution alone.
Disqualification of state assemblypersons is a state matter under the Eighth Schedule of the Federal Constitution and was not challenged in 1992. So, if Harapan and Warisan really want to stop party-hopping, recall elections can happen soon in Selangor, Penang and Sabah, where they enjoy two-thirds majority to amend the state constitution.
Don’t estimate the power of state-level recall elections. If the Selangor state assemblyperson of N19 Bukit Antarabangsa Azmin Ali is successfully recalled, then Azmin, who’s also the Gombak MP, would also be politically damaged.
WONG CHIN HUAT is an Essex-trained political scientist working on political institutions and group conflicts. He currently leads the clusters on the electoral system and constituency delimitation in the government’s Electoral Reform Committee (ERC). Mindful of humans’ self-interest motivation while pursuing a better world, he is a principled opportunist.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
Report this comment
Are you sure you want to delete this comment?
This action cannot be undone.