Constitutional law professor Shad Saleem Faruqi and constitutional lawyer Bastian Pius Vendargon cautioned that it could contravene a Federal Constitution provision that guarantees freedom of speech and association.
Shad Saleem said Mahathir’s proposed law would contravene Article 10(1)(c) of the constitution which states that all citizens have the right to form associations.
He said it also violates Article 10(2)(c) which permits restrictions on the right to form associations, on the grounds of security, public order or morality.
“This means that (people of) all races, religions, regions, professions or groups have the right to set up and join associations as long as these associations are not banned on specified grounds,” he told FMT.
“We are in a federal state. How can you stop regional parties from existing? What will happen to the Sabahan and Sarawakian parties?” he asked, saying the same questions can be asked to justify the existence of religious-based parties and labour-based parties.
“We are in a multi-religious and multiracial state. There are bound to be parties representing diverse beliefs and points of view, and that has to be respected.”
Mahathir, when asked if such a law would go against freedom of assembly or association, had said that there can be “no absolute freedom”.
“When you find that freedom destroys a society, you have to think about limits to freedom,” he said at a press conference on Nov 28.
Mahathir had said a two-party system would prevent a repeat of the political instability seen in the last general election, which resulted in a hung parliament.
He said the current political landscape, characterised by fragmented parties and splinter groups, had weakened the ability of any single party to form a stable government.
However, Shad Saleem disagreed, saying that Malaysians need to realise that the current political landscape is an evolution of democracy.
“We must come to terms with the idea that the age of omnipotent political majorities is over. Minority governments, coalition governments and unity governments are probably here to stay for a few decades.”
Rather than insist on a two-party system, he said, the nation should focus on strengthening its anti-hopping law.
“We must remove the incentives that motivate party hoppers to cross the floor. The number of cabinet posts at the federal level must be capped. MPs must be barred from holding posts in statutory bodies and government-linked companies,” Shad Saleem said.
He said party-hoppers should also be disqualified from holding on to their seats.
Vendargon agreed that any compulsion for a two-party system may offend the fundamental rights of freedom of speech, assembly and association (with limitations) as stated under Article 10 of the constitution.
He described the proposal as “an unnatural forced creation that impinges upon the freedom of choice for citizens”.
“Who forms the first two political parties? Why should a third political party not offer itself? What of the need for more independent candidates?” he questioned.
Constitutional law expert Philip Koh pointed out that while no legislative commands can constrain a healthy democracy, politicians should also act with integrity and good faith.
“While such a call by Mahathir now is understandable as there is no longer a dominant party, it is naive to think that a legislation (for a two-party system) can provide stability and prevent political manoeuvrings,” he told FMT. - FMT
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