©New
Sunday Times (Used by permission)
by Roger Tan
LAST Wednesday, the president of the Sabah Progressive Party (SAPP), Datuk Seri
Yong Teck Lee, said his party had lost its confidence in the leadership of the
prime minister, Datuk Seri Abdullah Ahmad Badawi. Yong also revealed that its
two members of parliament would either table or support a motion of no
confidence against the prime minister tomorrow.
On Friday, the party's supreme council endorsed Yong's no
confidence motion against the prime minister but did not make any decision
whether to quit the Barisan Nasional.
Apparently, this is not the first time Yong has made such a dramatic political
move.
On Oct 15, 1990, Yong was among some of the Parti Bersatu Sabah (PBS) leaders
who were instrumental in abruptly pulling the party out of the BN on the eve of
that year's general election.
The then prime minister, Datuk Seri (now Tun) Dr Mahathir Mohamad, called the
act as evil as stabbing him in his back.
Yong obviously thought then that the BN government would fall
when PBS threw its support behind Gagasan Rakyat and Semangat 46 led by Tengku
Razaleigh Hamzah. He was wrong.
The scenario was best captured by DAP's Lim Kit Siang in his media statement
issued on Nov 19, 2001:
"The PBS leaders who came over to Peninsular Malaysia to assess the political
climate in the run–up to the 1990 general election were led by Tan Sri Bernard
Dompok, then PBS deputy president, and Datuk Yong Teck Lee, then a PBS
vice–president.
"From their political assessments, both Dompok and Yong believed that Malaysia
was on the cusp of unprecedented political change, and that the 1990 general
election could see the downfall of Dr Mahathir and the rise of Tengku Razaleigh
to take over the Federal Government as prime minister.
"For reasons which both Dompok and Yong are the best persons to explain, both of
them believed that there were the 'numbers' for such a change of government,
that Gagasan Rakyat could win over 60 parliamentary seats in Peninsular
Malaysia, that a Barisan Nasional party in Sarawak was on the verge of defecting
from BN to Gagasan Rakyat involving over 20 parliamentary seats and that PBS
with control of over 15 parliamentary seats could be the king–maker in Malaysian
politics in deciding the toppling of Dr Mahathir and the election of Tengku
Razaleigh as the new prime minister of Malaysia."
This is not all. In 1994, Yong abandoned PBS and his mentor, Datuk Seri Joseph
Pairin Kitingan, to form the SAPP just before the state elections, which
eventually helped cause Pairin's two–week–old government to collapse. But PBS
returned to the BN fold in 2002.
It now calls into question whether party–switching or hopping is illegal, if not
immoral in Malaysia.
In fact, this issue has been cropping up ever so often since the March 8 general
election.
Legally, party–hopping is not unlawful.
Article 10(1)(c) of the Federal Constitution expressly states that all citizens
have the right to form associations, that is, to join, not to join and leave any
association, but Parliament may by law impose such restrictions as it deems
necessary in the interest of the security of Malaysia or any part thereof,
public order, morality, labour or education.
In 1992, the Supreme Court (now Federal Court) had the opportunity to decide in
the case of Dewan Undangan Negeri Kelantan v Nordin Salleh 1992 whether
an amendment to the Kelantan state constitution which prohibits party–hopping is
inconsistent with Article 10(1)(c). Article XXXIA of Part I of the Kelantan
constitution provides that if any member of the Legislative Assembly who is a
member of a political party resigns or is expelled from, or for any reasons
whatsoever, ceases to be a member of such political party, he shall cease to be
a member of the Legislative Assembly and his seat shall become vacant.
The Supreme Court declared that such a law was invalid because the restriction
imposed by the Kelantan Constitution could not be a restriction imposed under
clauses 2(c) and (3) of Article 10 as it was a law passed by a state legislature
and not the Federal Parliament.
In the words of Justice Tan Sri Gunn Chit Tuan: "I cannot, by any stretch of
imagination, see how such a restriction on the membership of a Legislative
Assembly, which infringes a citizen's right to form associations under Article
10(1)(c) of the Federal Constitution, can be deemed necessary or expedient in
the interest of Malaysia or any part thereof, public order, morality or even
labour or education."
However, neither Gunn nor the other two Supreme Court judges, Tun Abdul Hamid
Omar and Tan Sri Edgar Joseph Jr expounded further why such legislation would
not be in the interest of the security of Malaysia, public order or morality
except to imply that the word "morality" related to immoral activities in a
sexual sense.
But later in 2005, the Court of Appeal held in Sivarasa Rasiah v Badan Peguam
Malaysia & Anor that Section 46A(1)(c)(ii) of the Legal Profession Act 1976
is one example of such restrictions which Parliament may impose in the interest
of "morality" as it involved the issue of ethics.
This section prohibits any person who is holding an office in any political
party from becoming an elected member of the Bar Council or a Bar Committee or a
member of any of its committees.
Justice Datuk (now Tan Sri) Alauddin Mohd Sheriff said the word "morality"
should be given a broad, liberal and extensive meaning, wider than merely good
values. As "morality" was not defined in the Federal Constitution, Alauddin went
on to say the word in the Federal Constitution should be given its ordinary
meaning.
He then adopted the meaning from the New Shorter Oxford English Dictionary on
Historical Principles by Lesley Brown, Volume 1, which defines "morality" to
include the doctrine or branch of knowledge that deals with right and wrong
conduct and with duty and responsibility; moral philosophy, ethics.
With these two decisions, it would mean only Parliament and not any state
legislature can bring in a law to prohibit party–hopping. If such law can be
justified on the grounds of "morality", then no amendment to the Federal
Constitution will be necessary and the government will only need a simple
majority to pass an anti–hopping legislation.
So, we must now answer the second question whether party–hopping is immoral, not
in a sexual sense albeit the hopper's enemies may very well throw obscenities at
him.
Indeed, Datuk Ibrahim Ali, often described as one of Malaysia's most habitual
party–hoppers, does not think so.
He argued that just like a human marriage, a political marriage can naturally
lead to a divorce, and any anti–hopping law will be against human rights
principles.
In fact, other countries have taken totally divergent legal positions on this
issue.
In South Africa, amendments were made to its Constitution and other laws in 2006
to enable party–hopping by removing clauses which required members of the
National Assembly to give up their seats should they change parties.
On the other hand, New Zealand enacted the Electoral Integrity Act of 2001
(since expired) to proscribe party–hopping or waka–jumping (in its local
language) requiring politicians elected from a party to resign from Parliament
if they left their party's parliamentary caucus.
In my view, party–hopping is not only against morality, it is a nefarious act of
betrayal against the politician's own party and the people who have voted him in
because of his association with a particular political party. Party–hopping,
therefore, has no place in a parliamentary democracy like ours. Party–hopping
breeds corruption –– not just in the monetary sense as it is also a corruption
of power.
If any government comes into existence through this unethical means, it has no
moral credibility to govern. Neither does it have any moral authority to preach
on accountability and good governance.
As a matter of principle, any person who wishes to abandon ship and cross over
should seek a fresh mandate from the electorate, failing which his act of
divorcing from the party which the people have voted in is equipollent to
committing an act of dishonesty.
In the oft–quoted words of the 15th American president, James Buchanan, "The
ballot box is the surest arbiter of disputes among free men."
Further, if we can have Article 48(6) of the Constitution which disqualifies a
person who has resigned from the Dewan Rakyat from running again in a general
election for a period of five years from the date of his resignation, then I see
no reason why we should not have a law requiring any MP who defects to another
political party to resign so that a fresh election can be held.
If only we had an anti–hopping legislation now, there would not be so much
politicking and uncertainty going on with members of various political parties
sardonically enticing each other to join them.
A fortiori, the country can also move on by accepting the March 8 general
election results as final and incapable of being altered.
An anti–hopping law will bring about and maintain political stability, and
politicians from all divides should very well remember that what goes around
will come around to haunt them, and it is in their interest to support an
anti–hopping legislation.
To conclude, let me quote South African Inkatha Freedom Party president
Mangosuthu Buthelezi on party–hopping: "Floor–crossing is like the HI–virus
because it robs the political system of all honour, holding political parties
hostage by rendering them unable to discipline their own members. It allows the
emergence of careerists, self–serving politicians, which are a very strange
breed because they do not honour the sanctity of the vote cast in the ballot
box."
I will not judge but I shall leave it to you readers to decide whether a
political hopper is like a HIV–carrier. Likewise, whether our society should
treat a political leaper like a political leper.
The writer is a senior lawyer.