The Coalition for Clean and Fair Elections (Bersih 2.0) condemns the defection of two state assemblypersons, Robert Ling Kui Ee of N29 Sidam and Azman bin Nasrudin N34 Lunas, quitting their party, Parti Keadilan Rakyat (PKR), in an obvious move just to topple the Pakatan Harapan (PH) state government.

The defections in Kedah underlines the urgent need for recall elections, which Bersih 2.0 Chairperson Thomas Fann has called for on 16^th March, 2020. https://www.bersih.org/time-to-empower-voters-to-recall-political-frogs-thomas-fann/ In the short run, only recall elections can prevent parties being constantly weakened by defection driven by personal gains as king makers who enthrone the next government, whether at the federal and state levels.

Bersih 2.0 calls upon PH and its ally Parti Warisan Sabah (Warisan), as the current victim of defection, to commit to introducing recall elections should they come back to power in the next federal and state elections and to introduce this mechanism in Selangor, Penang and Sabah where they still hold power. Anti-hopping law which many Malaysians call for is instead not a working solution.

Bersih 2.0’s full position on principles and remedies on party-hopping is as below:

1. Defection of lawmakers driven by personal gains in change of government undermines political parties, which are the backbone of parliamentary democracy. If voters cast their votes based on political party with the next government in mind, such defection makes elections hollow and undermines the legitimacy of our political system.

 

2. Anti-hopping law that many Malaysians call for is however a problematic remedy that trades one flaw with another. For an anti-hopping law to be effective, it must disqualify not only lawmakers who voluntarily leave their party, but also any lawmakers who are sacked by their party. This potentially turns lawmakers into puppets of their party leadership to avoid losing their seats if the latter act against public interests. For single-party/block governments with a simple majority, anti-hopping law will tame government backbenchers into government cheerleaders and effectively ensure that the Legislative becomes the rubber stamp of the Executive.

 

3. Realistically, any anti-hopping law may not survive a judicial challenge. One such law introduced in Kelantan was declared unconstitutional by the Supreme Court in 1992 for infringing freedom of association – enshrined in Article 10(c) of the Federal Constitution – of lawmakers (https://www.theedgemarkets.com/article/%E2%80%98anti-hopping-law-would-violate-constitution%E2%80%99). Any new anti-hopping law including the one introduced in Penang in 2012 (https://www.malaysiakini.com/news/213221) might be challenged and nullified in the court unless the Federal Constitution is amended to by-pass the 1992 verdict.

 

4. The true remedy to party-hopping without crippling the legislative and undermine parliamentary democracy is strengthening political parties. If parties are strengthened, crossover of lawmakers will not be endemic. It may still happen because of genuine differences over policies and ideologies, which is legitimate in multiparty democracy, but not because of material gains as kingmakers of a new government or additional cheerleaders of an existing government.

 

5. Strengthening parties in patronage-plagued societies like Malaysia requires two institutional reforms. The first reform is fair treatment of all political parties and their lawmakers such that lawmakers have little to gain – such as appointments to lucrative positions, granting of contracts, access to constituency development fund https://www.bersih.org/press-statement-30-march-2020-bersih-2-0-welcomes-special-allocation-for-opposition-calls-for-constituency-development-fund-reform/, or in the case of Perak in 2009, withdrawal of criminal charges https://www.thestar.com.my/news/nation/2010/04/23/experak-pkr-exco-members-acquitted-of-graft-charges-updated – from switching sides.

 

6. The second reform is a “Mixed Member” electoral system https://www.researchgate.net/publication/222032501_Electoral_Efficiency_and_the_Move_to_Mixed-Member_Systems which gives not just individual mandate to constituency representatives under our current First-Past-The-Post (FPTP) system who can therefore switch party, but also a direct mandate to parties through “Party-List Proportional Representation” system, in which seats stay with the party and pass on to backup candidates if the lawmakers defect to other parties. This would reduce the prospect of regime change by defection of a few FPTP representatives, whose mandates can be revoked with recall elections.

 

7. While change of electoral system requires much a deeper debate which has yet to taken roots, recall election is the best institutional remedy against party hopping. https://www.idea.int/sites/default/files/speeches/The-Use-and-Design-of-Recall-Votes.pdf Through recall elections, lawmakers who are rejected by sufficient number of constituents – through collection of verified signatures – will have to face another election where all constituents can decide if they should be retained or sacked. The ground for recall goes beyond defection and can include committing criminal offences but are spared from penalty of a fine less than RM 2,000 or imprisonment less than a year. If the recall motion is carried, a by-election will be held. It works like an anti-hopping law on those defectors whose crossover is rejected by their voters. Unlike anti-hopping law, recall elections empower lawmakers to leave their party or to defy party leadership to stand up for public interest if their actions are supported by the constituents.

 

8. All parties that reject party-hopping and support empowerment of voters should commit themselves to bring about recall elections at both the federal and state levels. If PH is sincerely against party-hopping, their state governments in Selangor, Penang and Sabah have the moral obligation to introduce recall elections at the state level. As disqualification of state assemblypersons is a power of the state under the Eighth Schedule of the Federal Constitution, states can introduce amendment to state constitution and necessary enactments to provide for the triggering and conduct of a recall election, as how the Penang State Government amended the state constitution in 2012 to cause disqualification for lawmakers who change party affiliation. As elections are a federal matter and Article 113(4) of the Federal Constitution provides that “Federal or State law may authorize the Election Commission to conduct elections other than those [to the House of Representatives and the Legislative Assemblies of the States]”, recall elections can and should be conducted by the Election Commission. And in the event of a successful recall, a normal by election will be conducted just as in other occasion of vacancy.

 

9. Political parties and their supporters should adopt a consistent and farsighted view on the issue of party-hopping, and not support it when it is in their favour and only oppose it when it is at their expense. Given the fluid political dynamics since 2008 and more so after February 2020, any short-term calculations may backfire in medium and long term for parties when the tide changes. Recall election is good and necessary for political parties as it will protect them from unwarranted switch of party affiliation but simultaneously allows political realignment that are consented by their constituents. In both promoting stability and permitting contingency, recall elections is key to professionalisation of politics which Malaysia badly needs after February 2020.

 

Issued by:
Bersih 2.0 Steering Committee