Written Submission To The PSSC On Constitutional Amendments To Restrict Party Hopping

The Coalition for Clean and Fair Elections (BERSIH) today submitted our written submission to the PSSC on Constitutional Amendments to Restrict Party Hopping. This written submission was requested by the Bahagian Hal Ehwal Undang-Undang (BHEUU) on behalf of the PSSC to BERSIH and others on 27 April 2022 as part of their consultation process with civil society and other stakeholders. The full submission is attached with this statement.

We responded to seven (7) questions posed by the PSSC and made our recommendations on what in our opinion is the best solution to address the challenges of party-hopping. Our recommendations and positions are guided by these four principles:

1. At the heart of democracy is the choice of voters who elected their representative to represent their aspirations. An elected representative is accountable to his/her constituents. A post-election change in affiliation by the elected representative must be affirmed by the same electorate who chose him/her and not a unilateral decision by the MP.
2. Freedom of association is fundamental in a democracy and the freedom of an elected representative in representative democracy to freely express the collective will of their electorate, even if it means going against party leadership and leaving the party, must be protected.
3. Intra-party discipline is necessary for parties to effectively push through election promises, policies and make a clear stand as opposition on issues of national importance.
4. Ease and cost-effectiveness of implementation is a consideration but subservient to the above points.

Given the complexity of the problem of party-hopping, BERSIH recommends the following:

1. Anti-Hopping Recall Law (AHRL) be enacted to empower the constituent’s voters a chance to determine if the seat should be vacated or not. Recall Petition is the best remedy for the problem of party-hopping in our FPTP system as it can both hold elected representative accountable and allow party system to evolve and stabilize.

2. The grounds for a recall petition be enshrined in the Federal Constitution, while the process, threshold and timeline in a separate Act of Parliament.

3. States must be given the freedom to explore and choose their preferred anti-hopping mechanism, which may be any variant of AHL or AHRL.

4. Abolish Article 48(6) of the FC to allow a MP to resign his/her seat in principled dissent and to recontest the same seat.

5. Article 54(1) should be amended to allow seat vacancies even after the House have sat for 3 years. Suggest that a vacancy shall not be filled only when there is less than six months before the Parliament term’s end.

6. To stop the collapse of a government until the status of sacked or defected MPs are resolved through by-elections, the incumbent PM should remain as the interim PM and a Confirmatory Vote of Confidence (CVC) held after the by-elections.

7. The loss of majority of a PM does not necessarily mean that there is another candidate who can commands the majority support of the members of the Dewan Rakyat. To ensure political stability, a Constructive Vote of No-Confidence (CVNC) should be held to ensure that an incumbent PM can only be removed if there is a replacement candidate who commands the majority. This mechanism exists in the German Parliament for the removal of the Chancellor.

8. That the PSSC consider extending its term and TOR be expanded to include other substantial factors that contribute to party-hopping, namely, unequal Constituency Development Fund (CDF), GLC appointments, selective investigation by agencies like MACC and IRB, and perceived selective prosecution by the Attorney-General.

BERSIH releases our submission to the PSSC for the sake of transparency and our accountability to the public. We have made known all our views, positions and recommendations on party-hopping in statements and research reports these past two years, and we want to put this submission to the PSSC in the public domain.

Released by,
The Steering Committee of BERSIH