Why recall elections could work better than anti-hopping law in Malaysia

 

The news broke last night that Prime Minister Ismail Sabri Yaakob’s cabinet has agreed to a slew of institutional reforms, including a 10-year limit for the prime ministerial post and to expedite lowering the voting age to 18 (it was already passed into law but its implementation has been delayed).

Key among the proposed reforms is that an anti-party-hopping law would be tabled in Parliament.

This has widely been called for as Malaysians are unhappy about the political stalemate which has arisen partly because elected politicians have defected and used the switch of allegiance to alter the composition of the government.

With such a narrow majority, any administration is hobbled as disgruntled backbenchers could be lured to switch sides, thus enabling them to hold the government hostage, and perpetuating the instability.

Indeed, in his statement announcing the move, Ismail Sabri said the reforms were intended to restore political stability in the country to tackle the Covid-19 pandemic and restore the economy, in line with the decrees by the Yang di-Pertuan Agong and the Conference of Rulers.

While the general sentiment is for an anti-hopping law, which would trigger a by-election every time a politician jumps party, political scientists like Wong Chin Huat and electoral reform coalition Bersih argue that the recall election system would serve voters better.

One key flaw of the anti-party-hopping law is that it does not account for an instance in which an entire party like Bersatu defected from the then ruling Pakatan Harapan coalition to form a new government bloc.

While its MPs were elected under the PKR banner that represented Harapan in GE14, Bersatu lawmakers did not strictly party hop as the party itself left Harapan to form a new coalition called Perikatan Nasional (PN).

The group of PKR defectors led by Azmin Ali however, would come under any anti-party-hopping law.

Azmin Ali (left) and Muhyiddin Yassin

Under a recall election system, however, both Bersatu and the PKR defectors could be held accountable with a by-election triggered. The recall system that is being proposed would be in three parts.

Firstly, a signature campaign would be held among voters registered in the area, with a minimum threshold required to trigger the next phase.

The second phase would be a referendum on whether to "recall" the existing candidate.

The third phase, assuming the first two resulted in a recall, would see a by-election called to select a fresh candidate.

Until now, there has been a Catch-22 factor to such proposed reforms – whether one goes with an anti-party-hopping law or a recall election – in that the reform needs to be agreed to by the same group of people who have been causing the problem.

Freedom of association constitutional issue

Wong feels that while party-hopping is a real threat to both political stability and the legitimacy of parliamentary democracy in Malaysia, the anti-hopping law advocated by many since the 1980s is the wrong remedy, in part because of a constitutional hurdle by a 1992 court verdict.

In 1992, the Federal Court ruled that Article XXXIA in the Kelantan State Constitution was null and void because it infringes the freedom of association, enshrined by Article 10(1)(c) of the Federal Constitution, of elected representatives.

“The first remedy is a different interpretation of Article 10(1)(c) by the judiciary. In 2009, the Federal Court had affirmed Section 46A(1) of the Legal Profession Act 1976 that prohibits office-bearers of political parties from election to the Bar Council as ‘reasonable restrictions’.

“While the second remedy is a constitutional amendment to Article 10(1)(c) to explicitly list disqualification due to party-hopping as an exception. Such a constitutional amendment needs a two-thirds majority and it becomes a cul-de-sac,” said Wong.

Political scientist Wong Chin Huat

He also expressed the fear that an effective anti-hopping law will make legislatures more of a rubber-stamp of the executive and dilute the check and balance inherent in a parliamentary system.

If a lawmaker can be compelled to vote for a bill which he or she has rigorously argued against, what is the point of having a parliamentary debate?

Wong also added that the third issue with anti-hopping laws is that Malaysia has permanent coalitions with a First-Past-The-Post (FPTP) system, where the mandate is for candidate, party and coalition.

“When a party leaves a coalition, as in the case of Bersatu leaving Harapan, should the representative stay with the party or with the coalition? Does it affirm the voters’ mandate if Dr Mahathir Mohamad and the four other MPs sacked by Bersatu, instead of Muhyiddin Yassin’s gang, had lost their seats instead,” asked Wong.

He said recall elections would do a much better job of giving voters the right to fire errant politicians.

“In normal employment contracts, both employers and employees are allowed to fire each other provided with prior notice, normally a month or two. In Malaysian politics, however, only lawmakers can fire their boss by resignation, voters have to continue paying the lawmakers who jump party or sleep on the job.”

Normal recall elections are found in at least 19 states in the US, British Columbia in Canada, Japan, Taiwan, the Philippines, Switzerland, Ukraine and Peru, said Wong.

Recall elections empower voters

Bersih chairperson Thomas Fann also backed the recall election as an electoral mechanism that allows voters to petition for a mid-term election to try and remove or sack the elected representative of their constituency if they are unhappy with the actions or performance of that person.

California Governor Gavin Newsom is set to face one next week and Arnold Schwarzenegger ascended to the same office after his predecessor Gray Davis was voted out in a recall election in 2003.

Interestingly, the California model merges the second and third phases, meaning that Newsom could be ejected on the same ballot that elects his successor.

“The biggest motivation for Bersih 2.0 to advocate for recall elections is our own Sheraton Move that took place over 16 months ago. The political coup that took place through the defections of MPs exposes very serious weaknesses in our existing laws and political system.

“Party-hopping happened because currently there are no prohibitions or even deterrence for an elected representative to defect for whatever reason and, as what we witnessed during the Sheraton Move, with devastating consequences leading to the collapse of the federal government and six state governments in less than 10 months,” said Fann in an email to Malaysiakini earlier this year.

Bersih chairperson Thomas Fann

Bersih ran a Simulated Recall Election (SREL) campaign after the second wave of defections earlier this year, with Tebrau MP Steven Choong and Julau MP Larry Sng defecting from PKR to align with PN.

The recall election is not prohibitive but is a deterrent measure that would give the voters of the constituency the option to remove their MP or state assemblyperson if they do not approve of his/her defection.

“Reps who won on their party ticket where the constituency is their party’s stronghold will likely think twice before defecting, lest a recall election is triggered to remove them.

“The recall election empowers voters mid-term and reinforces representative democracy where the voters retain the right to sack or keep their elected reps,” said Fann. - Mkini