Corrected at 4:25pm, 4 Nov 2009
THERE are those who cheered for Opposition Leader Datuk Seri Anwar Ibrahim’s now infamous 16 September 2008 plot to take over the federal government by defections. There are also those who initially cheered the 10-day defection of Datuk Nasarudin Hashim (state assemblyperson for Bota, Perak) from Umno to Parti Keadilan Rakyat (PKR). But do these people now have the moral high standing to condemn the quitting of Port Klang state assemblyperson Badrul Hisham Abdullah from PKR to become a BN-friendly independent?
While some will try to argue that some defections are more moral than others, the truth is that defection remains defection.
At one level, every citizen — including lawmakers — must be allowed to freely associate and disassociate themselves with any organisation. Therefore defence for defection on the grounds of freedom of association is simply a red herring.
Does the seat belong to the representative?
The real question at another level is: Can a lawmaker carry his or her mandate to a new political party? By analogy, if you decide to leave one street dance party for another party, can you carry the seat you were sitting on with you? Not unless the chair belongs to you.
Does a legislative seat — and the mandate it carries — then belong to a political party or the elected representative?
The answer really depends on the electoral system. If you are elected under the “closed party list proportional representation” electoral system, the seat is undoubtedly your party’s and you should be disqualified the moment you quit the party.
For our first-past-the-post electoral system, even the political scientists are somewhat divided. Some believe that voters vote for candidates while others think that the votes are heavily driven by party labels.
What to do when you are in doubt? Ask the voters.
That’s why Datuk Shahrir Samad resigned as an Umno parliamentarian and recontested as an independent candidate for the Johor Baru parliamentary seat in 1988. This was when those seen to be aligned with Tengku Razaleigh Hamzah and Tun Musa Hitam were excluded from Umno Baru by former Prime Minister and Umno president Tun Dr Mahathir Mohamad.
Subsequent restrictions
Shahrir SamadBut Shahrir would be the last one to be allowed to resign and re-contest. After him, and really because of him, Article 48(6) of the Federal Constitution was added to disqualify a parliamentarian from re-contesting for five years if he or she were to resign.
Similar obstacles exist at the state level. In Selangor, Article 64(5) of the state constitution now has the same effect on Badrul Hisham. The three BN-friendly “independents” in Perak too are similarly constrained by the state constitution’s Article 31(5).
If Article 64(5) of the Selangor constitution is not removed, insisting that Badrul Hisham resigns is in fact penalising his freedom of association.
But beyond removing the anti-reelection clauses, what options are available when a lawmaker changes his or her party affiliation?
Not doing anything, which is the status quo now, means that the lawmaker is allowed to treat his or her mandate as private property which may be easily sold or pledged for personal benefit.
The other extreme is the so-called anti-hopping law, which forces automatic by-elections. This means the party leadership would be given tremendous power to discipline its lawmakers. And so, unless they are confident of overwhelming public support, lawmakers may simply toe the party’s line to avoid being sacked.
A more ideal solution is perhaps to give the power to neither the elected representatives nor the party leadership, but to the electorate instead. After all, if the voters want the elected representative to go against his or her own party, why should he or she not follow the voters’ desires?
Recall elections 101
Recall elections are a viable alternative to anti-hopping laws (© vancity197 / sxc.hu)
Recall elections, common in the US, allow voters to remove an elected representative before his or her term in office expires. Not limited to defection, this form of direct democracy allows voters to sack any representative who misbehaves or simply underperforms.
In California, to recall a statewide public office holder like the governor requires only an initial petition by as many voters as 12% of those who voted in the last election for that office.
If a recall election is held, voters will be asked to cast two ballots at once. The first would be to decide whether the incumbent should be recalled, and the second to determine his or her successor from a list of new contenders should the incumbent be recalled.
Arnold Schwarzenegger
(© Nate Mandos / Wiki Commons)In 2003, former Democratic Governor Gray Davis, blamed for a financial crisis and electricity woes, was recalled and Arnold Schwarzenegger was voted in. A bare 1.3 million voters who signed the petition — making up less than 10% of the total registered electorate — made that possible.
The threshold to recall a politician of course can be made higher to check the threatening or blackmailing power of a concentrated minority.
(Corrected) In British Columbia, Canada, the only jurisdiction in the Commonwealth which allows recall elections, the threshold is 40% of the registered electorate. Unlike in California, only when the recall motion is passed will a by-election be held later on. To date, the best result in a demand for a recall was 34% of the electorate, hence no recall election has been held.
If Malaysians want to stop party hopping, a clear option is to have recall elections with a reasonable threshold. This could be set at say 40% of the voters, not the registered electorate, in the last election.
Is the Pakatan Rakyat serious?
So, if Pakatan Rakyat (PR) is serious and sincere about political integrity, this is what they should do: propose an amendment to the state constitution to remove Article 64(5) — the anti-reelection clause — and introduce recall elections.
If this is passed in Selangor, it would create pressure for other state legislatures and Parliament to follow suit. Prime Minister Datuk Seri Najib Razak’s 1Malaysia would be put under a real test on integrity. Lawmakers such as Kinabatangan Member of Parliament Datuk Bung Mokhtar Radin, of “bocor” fame, would have to check their tongues before speaking.
Now, wouldn’t Barisan Nasional legislators defeat the amendment as the PR does not control the two-thirds majority in the house? Well, let them do it, and let the voters decide on their fate come the next elections.
And the PR does have a two-thirds majority in the Penang and Kelantan state assemblies. So, these states can set successful examples even if Selangor fails. Pressure would then certainly be mounted for the same to happen in Perak where defections have sunken the state into chaos.
If the PR, however, refuses to be different from its opponents, as has become apparent with their non-introduction of local government elections, they should stop complaining and protesting. We are sick of all politicians who break promises and betray our trust, not only Badrul Hisham. 
A political scientist by training and a journalism lecturer by trade, Wong Chin Huat is based in Monash University Sunway Campus. He believes that if the Pakatan Rakyat refuses to offer a different Malaysia from Datuk Seri Najib Razak’s authoritarian-centrist 1Malaysia, then a two-party system is just like having Tweedledee and Tweedledum.
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Vikraman says
Excellent suggestion, Chin Huat; recall elections are a very good starting point to cut down on this party-hopping business.
K S Ong says
Very refreshing idea indeed. Hope Pakatan leaders can initiate your suggestions to test voters’ response.
With Najib bent on having it his way and with all the powers at his disposal, it is necessary to be proactive instead of being sitting ducks. As PM, it is so easy to buy up opposition representatives with positions, contracts and whatever price mentioned.
prussiablue says
Bravo. I fully support your idea. The recalling scheme would act as a dagger hanging over the elected rep’s head reminding him [or her] who is the boss.
You are right, the PR in Selangor should push for some sort of anti-hopping law. Even if this cannot be passed, at least it shows the rakyat their conviction, and that the blame is on the BN side. Enough with politicking, time to show the rakyat what you promised, PR.
Jump Out says
I disagree with a recall election. If no provision is stated regarding the availability of a recall election, then it could be easily manipulated by certain political parties. Imagine one recall election per year; imagine the money and time spent by the state to campaign — money which, in my opinion, is better spent on other important matters.
Repeated elections year-by-year will only cause voter fatigue. Just look at California — mortally bankrupt and divisive politics that seeks to manipulate the ballot box for special-interest groups are slowly destroying this great American state.
At the end of the day, the buck stops at the party machinery that chooses the candidate for the election seat.
Abdul Rahman says
It wont happen because the SPR wont recognise it.
Sean says
I still think the ballot slip is a contract between candidate and voter. In the case where an elected official changes allegiance after election, he [or she] should be held to be in breach of that contract. The five-year thing is crazy — that should just go, for the sake of self-respect. An elected official whose supporters do back him [or her] changing sides could simply return his [or her] mandate. The supporters give it back to him [or her] in a by-election, and everybody is happy. If they don’t back him [or her], they get a new representative, possibly with the original party (if that was the basis on which they voted).
I don’t see why this should be so difficult. If freedom of association is superior to a contract between two individuals, I wonder what the value of marriage is in Malaysia!
Cheng Poh Heng says
Kelantan did indeed pass such an anti-hopping amendment, but this was struck down as ultra vires the Federal Constitution.
chinhuatw says
@Abdul Rahman,
It is not up to the EC to decide. Even if someone wants to challenge it, it’s unlikely to be the EC’s job.
@Cheng Poh Heng
The Kelantan’s anti-hopping law was struck down on the ground of freedom of association, which was shared by some lawyers last year when commenting on Anwar’s 916 plot. This is a red herring as I argue but of course, unless you add a caveat on Federal Constitution’s Article 10(1)(c) (freedom of association) or have the 1993 verdict revoked, any anti-hopping law at federal or state level would be unconstitutional.
The recall election comes from an entirely different perspective. It is not specifically about defection, but more generally on the ground of voters’ disaffection. It would therefore have to be treated as one of the many grounds on how lawmakers can be disqualified (Article 48 in the Federal Constitution and Article 64 in Selangor State Constitution, where incidentally the anti-reelection clauses are parked).
@Jump out
Your objection can be treated at two levels.
At the first level, your contention may be on the threshold to successfully force a recall election. It’s 12% of the voters in the last election for a statewide office (like governor) and 20% for a constituency office (like state representative) in California. This is arguably too low even though not much harm is caused (only four politicians have been successfully recalled before Gray Davis). On the other hand, the threshold in British Columbia is unrealistically too high.
I am calling for a reasonably high but still attainable one – 40% of voters in last elections, which should address your concern at this level. In practice, given a 80% turnout, the number of signatures required to initiate a recall election for a 80,000-voter parliamentary seat would have to be 32,000. Now, if 32,000 voters are bothered enough to want the job contract be revoked, is that not a strong enough ground to grant their wishes?
You may of course object at the second level, that elections should be kept at the minimal as it is wasteful – the “money-can-be-spent-elsewhere” argument if pursued abosolutely.
To copy from the tag line in education sector, my reply would be “if you think democracy (education) is expensive, try dictatorship or chaos (ignorance).”
Politicians can be like diapers and need to be changed frequently for the same reason. Perak is the text book case of how unchangeable diapers (protected by certain by-default unelectable high offices) cause harm to public health.
Antares says
You forget one crucial factor in your putdown of Anwar’s 916 gambit, Chin Huat. At that point in time, a successful takeover of the federal government by the Pakatan Rakyat would have prevented the ascension of Najib Razak to the post of PM. I personally feel such a coup would have been worth the trouble of subsequently weeding out all the deadwood currently lodged within PKR, PAS and DAPthe (to a lesser extent) through a snap election six months down the line — after the EC, the PDRM, and the Judiciary had been refurbished and put under professional, nonpartisan management.
As things stand, the nation is worse off than ever — with a known hoodlum as top cop, a sleazebag as AG, and a suspected murderer as PM.
Anonymous Coward says
This is an excellent idea and I can certainly throw my weight behind this. I hope Pakatan Rakyat is reading this and will be able to legislate this.
joseph chieng says
That is the most sensible thing to do in the absence of ombuds[persons]. It should act as a deterent to politicians who betray the trust of voters.
chinhuatw says
@Antares,
There are two ways to judge a political act. First, is it right (ethical)? Second, does it bring a good outcome?
To me, Anwar’s Sept 16 plot was clearly wrong on the first ground. To defend it as a principle is to encourage defection – then, Badrul Hisham’s decision must be fully respected if not cheered for.
Most of the supportive voices for the 916 plot – your comment included – have come to its defence on the second ground, with Najib’s “evil” being the most common justification.
Now, the proof of the pudding is in the eating. If Anwar had succeeded (and if Anwar did implement real political reforms), then the question for his critics like me is: should we cheer for a moral wrong that brings about a political good? We might then be in a moral dilemma.
But Anwar’s moral wrong has not brought about political good. And quite the opposite, his plot had arguably weakened Abdullah’s power base so much that it actually expedited Najib’s succession. (In Perak, his plot has been used by BN to justify the Perak coup.)
So, if Najib is indeed such an evil, Anwar may have to be blamed for his strategic misadventure.
So, why should we be sympathetic to a moral wrong that brought about a political [evil]?
racist says
[Don’t] waste [time] with Democracy, we should go for Demo-Communism: [mixture] of both.