This will be published in the Selangor Times on 9 November 2012. Ask Lord Bobo is a weekly column by LoyarBurok where all your profound, abstruse, erudite, hermetic, recondite, sagacious, and other thesaurus-described queries are answered!
Lord Bobo, what do you think of Penang’s new anti-hopping law? Is it unconstitutional? (Ribbit, via email)
On 1 November 2012, the Penang State Legislative Assembly passed the Penang State Constitution Enactment (Amendment) Bill 2012 (“the Bill”).
Unfortunately, as at the date this article was written, the precise terms of the Bill remain unknown, as the Bill could not be located anywhere on the Penang State Legislative Assembly’s website.
So much for Penang’s much heralded commitment to “Competency, Accountability, Transparency” (saved somewhat only by virtue of proceedings in the State Legislative Assembly being broadcast live on the Internet).
Nevertheless, going by news reports the Bill apparently:
Simply put, as far as Penang is concerned no elected representative can party hop or cross the floor, and if they did so, they must vacate their seat.
Proponents of the Bill argue that there is a dire need for such anti-party hopping legislation. Governments, they say, should only be formed as a consequence of voters expressing their will at the ballot box. So when Malaysia has Sabah (1994) and Perak (2009) as part of the tapestry forming the nation’s political past, an anti-party hopping legislation is vital. Even so, let’s abandon subjectivity and embrace something more objective, that orphan child which is hailed as sacrosanct one day, and ignored the following day – the Federal Constitution.
The right to party hop or to cross the floor is part of the freedom to freely associate with whosever one wills. This right is a fundamental liberty guaranteed under Article 10(1)(c) of the Federal Constitution.
Of course, like most rights under the Federal Constitution, it is subject to exceptions. Legislations can be enacted to limit or regulate the right to freely associate with whosoever one wills.
Does this therefore mean that the Bill is constitutionally valid? The short answer to that is no. A very clear no.
The Bill is unconstitutional, as legislations limiting or regulating the right in question cannot be passed by State Legislative Assemblies. Only Parliament can enacts such laws. This much is evident from Article 10(2)(c) of the Federal Constitution and confirmed by the Supreme Court decision in 1992 in Dewan Undangan Negeri Kelantan & Anor v. Nordin Salleh & Anor.
The apt question to ask at this juncture is whether Parliament should enact such a law. If we adopt a “human see, human do” logic (Lord Bobo despises the phrase “monkey see, monkey do” which implies that doing something silly without thinking is a trait unique to monkeys!) and go by the legislative state of affairs in developed countries like the United Kingdom, Germany and Canada, Malaysia should not have an anti-party hopping or floor crossing legislation.
However, let’s not just ape those countries and think critically about whether such a legislation is sensible or otherwise. Keep in mind that Malaysia would be joining the ranks of countries like Lesotho if it opts to enact an anti-party hopping legislation – which speaks volumes of where Malaysia stands politically at this juncture.
Linked to that is the question of whether an elected representative who is constitutionally compelled to “vacate” his or her seat (in contradistinction to “resigning”) should be able to contest in the by-elections required to fill his or her seat. Arguably, the prohibition against the elected representative from re-contesting, e.g. pursuant to Article 13(5) of the Penang State Constitution, from contesting as a consequence of “resigning” may not apply when a seat is “vacated” in this way.
After all, it may very well be that the former representative may have been merely acting in accordance with the dictates of his or her conscience that what is being done is in the interest of the electorate. So why should he or she be penalised politically for that?
Of course if Parliament in all its wisdom elects not to enact an anti-party hopping legislation, then there is no better recompense than to parrot, on an occasion when party hopping occurs, what Winston Churchill said on an occasion where a Liberal MP crossed the floor to join the Socialists: “It is the only time I have seen a rat swimming towards a sinking ship.”
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