Loyal Followers

Tuesday, September 18, 2012

Anti-hopping law – a necessity?

Rumour has it that there are some politicians flying all over the country to induce a mass party-hopping, whether before or after the next general election. This calls into question the sanctity of the people’s vote and choice at the election. And if we view this from a macro viewpoint, it brings into sharp focus the mockery of democracy that this act may result in.

The exact motivation(s) of a voter in voting for a particular candidate will be hard to ascertain. Whether the voter votes for the candidate as an individual or for the party which the candidate represents will be a source for further study. The fact that a voter actually crosses at the column beside the party’s emblem to denote his or her support for that party/candidate on the ballot paper may however provide an important, though not definitive, clue to the question.

Be that as it may, the end result of a vote for any candidate would be the formation of the government by the political party whose candidates win the most number of seats. That is the thrust of our – and in fact, every - democratic process.

It follows that when a government can be changed by several elected representatives frog-jumping from an elected government to the opposition, the democratic process whereby our government is chosen and formed would be rendered a mockery. In the same breath, when a new government could be formed by an opposition, who has actually lost the election, by virtue of the frog-jumping acts, the whole foundation and premise of that new government is the betrayal of the people’s votes and choice.

That would be a sad reflection of where we are, in terms of democratic process, in the 21st century.

Yet, parliamentary defection is not peculiar to Malaysia. GC Malhotra, in his book, Anti-Defection Law in India and the Commonwealth, noted that the defection is also known “by different nomenclatures—such as "floor-crossing," "carpet-crossing," "party-hopping," "dispute" and "waka [canoe]-jumping." In fact “crossing the floor”, according to the Australian Parliamentary Library, 2005, sometimes refers merely to the act of voting on an issue with the opposition rather than the act of defecting to another party.

In the book, Malhotra listed anti-defection laws, in varied forms, enacted by India in 1973, 1985 and 2003. The 2003 law provides that a person can be disqualified from serving in parliament for "voluntarily giving up the membership of his original party" (2005: 965). Furthermore, the Indian law permits parliamentary expulsion simply for voting (or abstaining from voting) “in the House contrary to any direction issued by the political party to which he belongs."

Kenneth Janda, in his paper, “Laws Against Party Switching, Defecting or Floor Crossing in National Parliaments” (Northwestern University, August 2009), observes that at least 8 countries see defection as a serious mischief necessitating anti-defection rules in their respective constitution. These are Belize, Namibia, Nepal, Nigeria, Seychelles, Sierra Leone and Zimbabwe. Closer to home, even Singapore sees it fit to provide in its constitution a provision which reads:

Article 46 Tenure of Office of Members

(1) Every Member of Parliament shall cease to be a Member at the next dissolution of Parliament after he has been elected or appointed, or previously thereto if his seat becomes vacant, under the provisions of this Constitution.

(2) The seat of a Member of Parliament shall become vacant;

(b) if he ceases to be a member of, or is expelled or resigns from, the political party for which he stood in the election.

Janda observed that as of 2009, there were at least 41 nations which have anti-defection laws (as opposed to having a constitutional provision) in one form or another. Perhaps, the best rationale for anti-defection laws is best summarized by Scott W Desposato, as quoted by Janda in his paper:

While switching is relatively rare in most countries, it has been common in many countries, including South Africa, Japan, Bolivia, Ecuador, Nepal, Russia, the Philippines, France, Italy, and Brazil. Such behavior is usually dismissed as an indicator that "parties don't matter," but I argue that party switching warrants study for at least three reasons. First, frequent switching makes it clear that parties do matter—otherwise politicians would not bother to switch. Second, and more importantly, switching provides a unique window on politicians' underlying preferences, including their incentives for belonging to political parties. . . . Finally, switching poses a normative problem for representation in mass democracies. Parties are the primary mechanism linking voters and politicians in modern mass democracies.”

I could add another one to the reasons proffered by Desposato. And that is the fact that switching party after an election, if not curbed, would open the democratic process to disrepute. Elected representatives are lured by opposing party with promises of economic gains, power or even threatened with blackmails.

I am of course mindful of a 1992 decision by our Supreme Court in Dewan Undangan Negeri Kelantan & Another v Nordin Salleh & Another where an anti-hopping law introduced by the Kelantan government was found to be repugnant to our Constitutional right to freedom to associate and thus, void for being unconstitutional.

I humbly opine that that decision, with respect, is wrong.

Anti-hopping law in the terms as contained in the Singapore provision above does not prohibit the elected representative from joining any party of his choice. Rather it states the result or consequence of that action, namely, his seat is deemed to be vacated. The right to associate is there. It is just that once he chooses another party, he vacates his seat. Just as we would argue that we have the right to drive a car, the mere fact that there is a provision that we may lose our license if we commit traffic offences too often, does not mean that our right to drive has been unconstitutionally taken away.

It must also be pointed out that the Supreme Court case involved a state law. I would propose that the anti-hopping law, if thought necessary, to either be passed by the Parliament as a federal law or to take shape in the form of a Constitutional provision, such as the Singaporean provision.

Now, where is the two-third majority when we need it?