Anti-Hopping Laws: Vice or Virtue?

  • By AdminL
  • May 30, 2009
  • Comments Off on Anti-Hopping Laws: Vice or Virtue?

Collage Anti-Hopping Laws

The Malacca Bar Committee recently organized a forum to discuss the question of whether anti-hopping laws were a vice or virtue; a question which gained particular poignancy, given the recent manoeuvrings and spate of decisions to determine which party had the right to govern Perak.

Four speakers were invited to share their thoughts on the question – Dr. Azmi Shahrom, Yeo Yang Poh, Gobind Singh Deo and Malik Imtiaz Sarwar.

Dr. Azmi Shahrom kick-started the forum as the first speaker and expressed the view that he believed that the recent incident involving the 3 Legislative Assembly members in Perak to be quite abhorrent as they did so not on grounds of principle or ideal. Nevertheless the issue, he said, revolves primarily around the freedom to associate or disassociate.

He pointed out that allegiance-switching is a normal part of political life but acknowledges that this was probably difficult to accept in this instance as the switching led to a change of government. Such a change is probably quite unthinkable in more mature democracies but the unthinkable occurs here because there is a lack of maturity and understanding of the democratic process.

Dr. Azmi hastened to reassure the audience that while the idea of allegiance-switching may be somewhat discomforting to some, the fact is the issue of the freedom being abused doesn’t quite arise as there are already safeguards in place in the law.

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No doubt, one can’t stop a person from joining whoever they want but on the other; one must respect the citizens of the country who have voted one particular group to power. A far reaching change, such as the change of Government, shouldn’t happen through the backdoor. Unfortunately, where Perak is concerned, he believed the person entrusted with this responsibility mistakenly decided not to dissolve the Legislative Assembly/

Of course, it also pays to ensure that other democratic mechanisms like good anti-corruptions laws and the Malaysian Anti-Corruption Commission is made more resilient to ensure that even when allegiance-switching occurs, it doesn’t occur for debase reasons.

Yeo Yang Poh then took over the baton and summed up the objection to political crossovers as follows – if people’s representative party hops, he is treated to have betrayed the trust and mandate which the voters have given him or her

This objection is premised on certain underlying assumptions. Firstly, Malaysian voters vote along party lines i.e. they have confidence in the party as opposed to the individual. Secondly, when voters give votes to a particularly individual, you are supposed to toe the party line in each and every subject matter even if the party line has not been thought of at the time the voters are made.

The former President of the Malaysian Bar noted that the first assumption may not necessarily be true as while it is true some candidates are voted in because of their party credentials, other candidates are voted in because of their personal credentials. As for the second assumption, it may not necessarily be realistic as personal convictions on this or that can sometimes change and this should not be seen as a betrayal of the voter’s mandate.

Ultimately, a lot depends on the reasons or the motive for hopping and there can be a lot of abuse. The complaint may not even be so much against hopping per se but the reasons for the hopping but which reasons can be rather difficult to discover.

Yeo’s final point at the forum was that it is the abuse of hopping which needs to be checked. However, he pointed out that the abuser is not the candidate who switched allegiance but committed and perpetuated by Malaysian voters. The electorate appear to tolerate party hopping of the wrong kind when it comes to ‘crunch time’ during elections. Voters need to look inwards and tell the politicians that it is suicidal to commit hopping for the wrong reasons.

Gobind Singh Deo then took his turn at the rostrum by asking whether everyone knew who their Legislative Assembly representative or Member of Parliament for their constituency was. He felt that on 8th. March, 2008, it seemed as if any candidate placed against Barisan Nasional candidates would have won. In that sense, it was not so much a victory for Pakatan Rakyat but more of a loss by the Barisan Nasional.

The underlying reasons for that are that the voters simply voted for change. However, having said that, how would voters feel if the candidate who promised change, lambasting the other side, suddenly switched to the very side he was castigating previously.

The right thing to do would be to resign, explain to the voters the candidate’s reasons for doing so and seek a fresh mandate in the form of a by-election. The only problem in this country is that if the candidate resigns, the candidate can’t re-contest.

Gobind acknowledged that there may be positives of hopping as evident by the following example:

“Assuming Hitler ruled. During the elections, everyone being very impressed with his presentation voted the whole party in. He won. We then find that he wants to do what Hitler did – genocide etc. All of us know that it is wrong. Can’t control, crazy. What do you do? Does everybody say wait for next election?”

So, clearly, the present system which prevents candidates from resigning and seeking a fresh mandate is flawed and there are good aspects of hopping.

On this note, it is also sensible to ask some further questions. For instance, when a vote was cast at the elections, was the vote cast for the individual, party or the principles which the candidate projected? Or what happens when a whole party decides to join someone else – is that not ‘party hopping’ since the whole party is hopping? In such a situation what does the individual candidate do? He had previously lambasted the policies of the other party but now his party is joining the ‘other side’.

At the end of the day, according to Gobind, when a decision is made to support or reject a decision to switch allegiance, the individual candidate would be judging it against the principles which he had projected.

That said, Gobind emphasised that he feels hopping to be a detestable deed. In fact, he felt it is a crime as it is a betrayal of the trust of the people who voted whichever candidate. The moment the candidate contemplates changing allegiance, he needs to go back to the people and get a fresh mandate. Otherwise, there will also potentially be the ridiculous situation of candidates who go missing, come back and say they support one party on a party day and go missing again and say they support another party on another occasion.

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However, the problem, again, is with the system as the system doesn’t empower the people to provide that fresh mandate to the candidate. The issue of pre-dated resignation letters is merely symptomatic of that very same issue.

Gobind felt that there was a need for anti-hopping laws but its terms should be clear so as to provide some certainty as to when a candidate must seek a fresh mandate from the people.

On this score, Malik Imtiaz expressed a different view. Even though he does not support hopping as a matter of principle, he nevertheless felt that there was no need for anti-hopping laws.

Principally this is due to the fact that one would be compelled to draw up a list of exceptions as to when party hopping is or is not permissible. That would be ridiculous as the law needs certainty.

So once we come to terms with the fact it is impossible to regulate hopping, we can then come to terms with the fact that answer lies within the causes of hopping. According to Malik, hopping is merely symptomatic of the breakdown of the democratic process within Malaysia.

The remedy to the issue actually lies within the Federal Constitution enacted in 1957. That Constitution sets out four important aspects.

Firstly, there is freedom of association. The Supreme Court in the case of Nordin Salleh held that this freedom includes the freedom of disassociation.

Secondly, in order to qualify as a candidate for election, you must be an individual and you must not have certain disqualifying features. The Constitution does not mention political party and the legal premise is that when there is a vote done, one votes for the individual. This was the reality in 1957 and the same applies now.

Thirdly, the Constitution does not set any restriction that a candidate can’t switch allegiance. Therefore, the founders of the Constitution allowed it to happen in their minds. This is important to note.

Fourthly, if a candidate resigns, then at that stage there was no prohibition in the candidate contesting. The case of Shahrir Samad is evidence of that. Contrast this to now, if you resign, you can’t re-contest.

That was the scenario in 1957 i.e. a candidate could hop. The Constitutional founders felt that it was permissible as the expectation was if a candidate stood for elections, the candidate was worthy of standing for elections. In other words, the candidate was a statesman who could do some good for the constituency. The candidates, then, appeared to appreciate their roles as an Assemblyman or as Parliamentarian. This doesn’t seem to be the case today.

Malik then asked why the founders thought about hopping in this way did and gave four reasons for this. Firstly, in general, there was a respect for the rule of law. Secondly, there was a respect for constitutionalism and all that means to us as a society. Thirdly, there was a respect for the system. Fourthly, it is impossible to define hopping.

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Today, if a candidate resigns, the candidate can’t stand for election for 5 years. That was done for political convenience. Unfortunately, the repercussion of that change is that candidates today can’t do anything on principle anymore. So, what is a candidate supposed to do in that situation?

Today, in the system that we have right now, the rakyat is the lowest denominator and the lowest priority. Ultimately, it is a spectator game that people play at some level for the benefit of the elites and we just happen to be there. That is what the system has become. Look at public perception of the key public institutions of the State. The police in many minds are a joke. The judiciary, MACC and the Election Comission isn’t too far behind. When the system no longer functions as a system, seemingly, and the system is skewed to a particular end, seemingly, it takes a lot out from a candidate.

In Malik’s view, the issue of anti-hopping cannot be considered in isolation from all of the above and maybe the remedy lies in strengthening the system so that we can go back to the ideal. The way it was supposed to be all along. Ultimately, he emphasised that the solution does not lie in tying people’s hands as we have seen that going wrong far too many times before.

The moderator then opened the floor to the public to pose any questions or share comments as they saw fit. Most questions revolved around the ‘musical chairs’ happening in Perak, with some questioning the process by which the change of Government took place and others questioning the decisions meted out by the relevant institutions subsequent to the hopping.

In that sense, it seemed rather ironic that the forum was held in Malacca as many years ago, similar conflicting questions were raised when Hang Tuah duelled Hang Jebat. Superficially, the duel was merely a duel between two friends. The reality however was that the duel encapsulated two conflicting philosophies regarding justice: one demanding absolute fidelity to process and the other demanding absolute fidelity to outcome.

The long and short of the issue is simply that if the process is as robust and resilient as was intended by the framers of the Constitution, then no questions can rightly be raised about whatever outcome – whether it relates to the question of hopping or the consequences of hopping.

After the question and answer session, the moderator brought the session to an end at about 11 p.m. leaving the audience with much to digest upon.

For those select few who revel in Malacca’s past, the forum that night must have evoked conflicting emotions similar to the ones raised during the Hang Tuah and Hang Jebat duel. In that sense, the past has somehow connived to parallel the future, or vice versa, as the Tamingsari is, today, part of the official regalia of the Sultan of Perak.

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