Malaysiakini Letter

Are we inching back towards feudalism with unnecessary by-elections?

Amar Hilmi
Published:  |  Modified:

LETTER | The root of our bicameral law is associated with the British Westminster system. It is relevant to discuss this perspective while referring to their past. Before the formation of the constitutional monarch system, administration in Britain used to be feudal.

It was only later when the Magna Carta was agreed to by King John that citizen's rights were recognised.

This can be examined in John Locke's comment on the social contract. He stated, the people grant power and authority to their king, in return, the king will use the power for the interest of their people. 

Later, as constitutionalism developed, people no longer granted power to kings and monarchs. They granted power to their elected representatives. 

The main purpose of a constituency is for the representatives elected to voice their concerns in an assembly. This is in line with the concept of representation by delegation where people in large groups elect one person to represent their interests and motives.

And so, the question is then whether our practice of by-election is in line with the spirit of constitutionalism? 

One view is that elections in constituencies must be held only for genuine purposes of representation. Such originality is currently examined by respecting the five-year tenure in a seat. The past three politically asserted by-elections, in Permatang Pauh, Kajang and now Port Dickson were held in the middle of said tenure. 

The main spirit of constitutionalism is to ensure the elected representative will fight for the interest of their constituency. Where an election is launch as a political manoeuvre, this interest will be of question. Is it for the interest of people or interest of politicians?

In such by-elections, many candidates are not even local to their constituency. This locality is not even referring to their origin or some sort, but their proximity towards local issues and interest. In fact, such proximity is not even a factor for politicians in considering where to contest, but instead the safety of those seats are their main concern.

In short, a by-election will not only be a fight between two parties but a fight between two interests - the people’s public interest and politicians' private interest. Where these two interest collide, public interest must and always prevail. 

From the legislative view, the formation of an anti-by-election law is not likely to happen. This is mainly caused by the fact that, the current mechanism is well supported by virtue of various articles in the Federal Constitution for the resignation of a representative, and articles for disqualification.

This right was firmly endorsed by Supreme Court  in 1992 who mooted that anti-hopping law would be unconstitutional as it infringed the right of association. In that tendency, an anti by-election law if ever to be legislate will suffer similar consequence. 

In our current political development, we realise how fluid political moves could be. There are two alternatives to avoid such abuse of election.

First, is a constitutional amendment. Yes, the current law is in the spirit of protecting freedom of association. Question is, is it a fair right when it offend larger public interest.

People are usually under the impression that they will elect a person for their full tenure, without any unnecessary vacancies. When politicians opt to exit, this is as good as breach of contract, under misrepresentation. We are unfortunate however that this moral contract is not likely to be ever recognised in law.

Second, political parties can establish internal policies to cut this tendency. They may set bans on members who do so.

Politicians, if they really care about the people's interest, should consider being more ‘gentlemanly’ and start to practice better politics.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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