Sunday, September 2, 2012

Nefarious act of betrayal

The Sunday Star
by Roger Tan

Party-hopping is a potent threat to parliamentary democracy and it is hoped that politicians will come to grips with this issue in a bipartisan manner.

THE great Winston Churchill (1874-1965) was known for party-hopping. In 1904, he changed parties from the Conservative Party to the Liberal Party, and was made Under-Secretary of State for the Colonies in 1905. He officially returned to the Tories in 1925 after he failed in two successive attempts to win a seat as an independent.

On record, his reasons for defecting to the Liberals were the Conservatives' reluctance to undertake social reform and their protectionist policy of favouring trade with the British Empire. But on the other hand, the Liberals were then an up-and-coming party, and his calculated move obviously did catapult him to high office at the rather young age of 31.

Of course, admirers and detractors of Churchill would respectively describe his act as one of political conscience and opportunism. But that is immaterial as until today, the British parliamentary system still does not proscribe party-hopping which also has different nomenclatures such as party-crossing, party-switching, party-leaping, floor-crossing and waka-jumping.

Like any democracy, regardless of it being an established or an incipient one, Malaysia too faces this perennial problem of party-hopping and elected representatives resigning from their political parties to become an independent.

Hence, we are not short of inveterate party-hoppers. One of them is Sabah State Reform Party (Star) chairman Datuk Dr Jeffrey Kitingan. Prior to this, he had joined Parti Bersatu Sabah (PBS), the Parti Bersatu Rakyat Sabah (PBRS), Angkatan Keadilan Rakyat (now defunct Akar), United Pasokmomogun Kadazandusun Organisation (Upko) and Parti Keadilan Rakyat (PKR).

It is, therefore, not surprising for such politicians to be given various undignified names such as political frogs, traitors, lepers and chameleons.

But we not only do not have any anti-defection law, but the Federal Constitution guarantees the freedom of association that is the right to join or not to join an association or dissociate from it.

The justification for this is best summed up by the eminent Indian jurist, Nanabhoy Palkhivala, in his book, Our Constitution Defaced and Defiled:

“No greater insult can be imagined to members of Parliament and the state legislatures than to tell them that once they become members of a political party, apart from any question of the party constitution and any disciplinary action the party may choose to take, the Constitution of India itself expects them to have no right for themselves, but they must become soulless and conscienceless entities who would be driven by their political party in whichever direction the party chooses to push them.”

However, today the Indian Constitution not only disqualifies an elected representative if he resigns from his political party but also if he votes or abstains from voting contrary to any direction issued by his political party without its prior permission or without having been condoned by his political party within 15 days after the date of voting or abstention.

In fact, there are about 40 other countries which have various anti-defection laws.

Our neighbour Singapore has a provision in Article 46 of her Constitution which disqualifies a member of parliament if he ceases to be a member of or is expelled or resigns from his political party. Hence, a by-election was held on May 26 this year when Hougang Member of Parliament Yaw Shin Leong was expelled by the Workers' Party on Feb 15 for alleged extramarital affairs.

In Malaysia, freedom of association is enshrined in Article 10(1)(c) of the Federal Constitution, but Article 10(2)(c) and (3) allow Parliament to impose such restrictions as it deems necessary in the interest of security, public order, morality, labour or education.

In the 1992 case of Dewan Undangan Negeri Kelantan v Nordin Salleh, the Supreme Court (now Federal Court) ruled that an amendment to the Kelantan state constitution prohibiting party-hopping was inconsistent with Article 10(1)(c). The apex court declared that such a law was invalid because the restriction imposed by the Kelantan Constitution could not be a restriction imposed under Article 10(2)(c) and (3) as it was a law passed by a state legislature and not the Federal Parliament.

In the words of the then Lord President, Tun Abdul Hamid Omar: “It is, in our view, inconceivable that a member of the legislature can be penalised by any ordinary legislation for exercising a fundamental right which the Constitution expressly confers upon him subject to such restrictions as only Parliament may impose and that too on specified grounds, and on no other grounds.”

It follows that any anti-hopping law if passed by the Penang state legislature will be inconsistent with Article 10 since our apex court has already declared that only Federal Parliament can impose any restriction on freedom of association and dissociation such as on the ground that party-hopping is morally reprehensible. And this cannot be done by way of an amendment to a state constitution or an ordinary legislation passed by a simple majority in Federal Parliament.

In other words, for any anti-hopping law to be intra vires the Constitution, amendments must first be made by Federal Parliament to Article 10 or Article 48(6) (which disqualifies a person who has resigned from the Dewan Rakyat membership from running again in a general election for a period of five years from the date of his resignation) and section 6(1) of Part I of the Eighth Schedule to the Federal Constitution.

In this sense, one would have expected the Penang state government to be more respectful of the Federal Constitution when Article 4 declares that the Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with it shall be void. To pass a law knowing that it is invalid but with the hope that someone will challenge its validity at the Federal Court is indeed an example of bad governance and it says a lot about the government's lack of respect for the rule of law and constitutional supremacy.

That said, personally I would support an anti-hopping law.

Having seen the amount of politicking and instability since 2008 caused by those who have defected or become independents, including the Sept 16 fiasco, I believe such a law will provide stability especially if the next election is going to be the most keenly contested one in our nation's history.

In fact, hitherto none of the defectors is near the stature of Churchill and neither has any one of them impressed me to be doing out of their own conscience other than perhaps for their own personal aggrandisement. It is also rumoured that some have turned into multi-millionaires overnight.

Be that as it may, party-hopping is a potent threat to parliamentary democracy. It is a nefarious act of betrayal especially when it can be employed as an extra parliamentary means to topple a democratically-elected government. In fact, this issue is many times more crucial than those advanced by Bersih!

Therefore, by prohibiting our elected representatives from switching their political allegiance, it will ensure that the sacrosanct will of the people expressed through the ballot box is respected. If they defect, the inevitable consequence must be that they give back their seat or seek a fresh mandate.

It is hoped that politicians will come to grips with this issue in a bipartisan manner as it will not bode well for the nation if due to this we are plunged into political chaos or the country comes to a standstill after an election.

Currently, all political parties are in one way or another hypocritically guilty of condoning and enticing party-hopping.

One can only hope that they will remember and remember it well that what goes around will come around to haunt them.

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