There is a great deal of discussion in the media about the possibility of elected members of parliament crossing over to parties other than those that they were members of when they contested in the recent General Election. Some opinion leaders, including the recently appointed “Law” Minister, Datuk Zaid Ibrahim, and constitutional law scholar, Professor Shad Faruqi, both of whom I have respect for, have suggested that laws aimed at preventing such cross-overs, or “hopping”, should be enacted and that such legislation, if enacted, would be consistent with the Federal Constitution.
I have my reservations about the correctness of these views. Though the “morality” of a decision by a particular member of parliament to cross over may be questionable, there are several inter-locking aspects that must be considered. As will be shown, these center on two core themes: the freedom of association and the freedom of choice.
It would be best to deal with the more obvious aspects of the issue. The Federal Constitution guarantees the freedom of association (Article 10(1)(c)). The Supreme Court in 1992 decided that this freedom necessarily includes the right to dissociate (Dewan Undangan Negeri Kelantan & Another v Nordin Salleh & Another). In so concluding, the Supreme Court struck down as unconstitutional legislation by which the Kelantan state constitution had been amended to declare a seat vacant if a member of the state legislature resigned from or left his/her political party. The Nordin Salleh decision has become foundation for the proposition that anti-hopping laws are unconstitutional.
It must be noted that Parliament can however legislate laws that impact on these freedoms if such laws are deemed “necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality” (Article 10(2)(c)). It would follow that if crossing over were a threat to security, public order or morality, it would be permissible to enact laws to restrict the right to association and, concomitantly, the right to dissociation. I believe that in articulating the positions they do, Datuk Zaid and Professor Shad rely on this proviso.
There is a difficulty with this view.
The proviso allows for encroachment into a guaranteed fundamental liberty. Constitutionally guaranteed liberties are jealously guarded as they represent the foundations of the free choice that democracies are built on. It is a hallowed principle of constitutional law that encroachment is allowed for only where the Constitution permits such encroachment. Further, those provisions that allow for such encroachment are to be interpreted narrowly so as to allow only for a degree of encroachment that is essential to achieve the aim underlying such provisions. It is apparent that the proviso in Article 10(2)(c) is aimed at ensuring public security and public morality. The standard of morality that decisions are to be benchmarked however is the general standard of the community as a whole and not the standard adopted by certain factions within the community. This is an important feature of this discussion and I will return to it.
Further, it is settled principle that encroachment is permissible only to the extent that it falls within a margin referred to as the “margin of appreciation”. The boundaries of the margin, as is clear from the expression of the constitutional provision, are defined by “necessity”. Whether there is a necessity is not to be determined subjectively. Jurisprudence on this issue points to an objective assessment of a given situation to determine whether such encroachment is necessary in the interests of democracy, having regard to public security or morality. If so, then an incursion is permitted. This is however not to be taken as a blanket right on the part of legislature to enact laws as it pleases. The incursion must be proportionate to the nature of the threat sought to be dealt with.
From the above, it is clear that encroachment is permissible but within a very narrow margin. The question is therefore whether the reasoning advanced in support of a call for anti-hopping legislation falls within that margin.
Before considering the question, it would be useful to remind ourselves that the Federal Constitution and the state constitutions do not limit candidates for elections at the federal and state levels respectively to members of political parties. In fact, the Federal Constitution expressly declares that unless disqualified every citizen resident in the country qualifies for membership (Article 47). Election laws reinforce this position further. This is why independent candidates are qualified to stand for elections. I have made a point of reiterating this to demonstrate that from the constitutional and legal perspective, voters vote individuals rather than parties. No matter the social considerations, in particular trends that point to some voters voting by reference to parties rather than individuals, when determining the legality of a situation (and conversely, to determine whether a situation should be made illegal), it is the constitutional and legal perspective that matters.
From this perspective, it is not readily apparent that a member of parliament is, as some have suggested, “cheating” his constituents by leaving the political party he was in when elected. The assumption in law is that he was voted in as an individual and not as a member of a political party. That the characterization (of cheating) is used loosely as is clearly shown by the fact that it is improbable that a member of parliament could be charged, let alone convicted, of the offence of cheating for leaving his party.
We must therefore address the question by asking ourselves whether it is wrong to firstly, dissociate from a political party, and if no, then whether dissociating is made wrong by joining another political party. In my view as the former cannot be answered absolutely in the affirmative, then the latter must be answered in the negative. My reasoning is as follows.
I have already explained the ‘personal’ as opposed to ‘party’ basis of elections. Let us explore that further by assuming that a member of a particular party has been elected a member of parliament. He is then required by the political party to do something – for instance, involve himself in corruption – that he doe not agree with as a matter of principle. He sees that corruption has become so entrenched that, in effect, it stands in as an ideology of the party. He decides that he can no longer associate with the party and its members for their advocating of corruption. Is it being suggested that he cannot leave the party?
The example is an extreme one but it goes to illustrate how nuanced the question really is. In order to enact anti-hopping legislation, all the nuances will have to be considered. And as this is done, it will be progressively seen that it would be impossible to predict with certainty the various permutations involved. For a law to be enacted, it must be capable of certainty. The possible scenarios that present themselves do not allow for the level of certainty required of legislation. Not every case of dissociation and cross-association is necessarily immoral as some suggest. In fact, some might see such actions as not immoral at all.
The political perspectives of party members who’s interests may be affected by such actions is not a true perspective and cannot be made the basis of law.
I can however see that there is sense is establishing a basis for deterring disassociations and cross-associations committed in bad faith. I believe that the basis is already in existence. There are laws pertaining aimed at preventing corruption that can be invoked if in fact members of parliament were ‘bought off’ by opponents. If such action involves elements of criminality, the Penal Code provides for a range of offences. There are also offences created under the Election laws.
And above all, there is the voter whose perception of a particular member of parliament will be affected by actions on the part of the latter that are seen as morally wrong. The fact that a member of parliament will lose credibility and be seen as untrustworthy and lose the next election is the strongest deterrent.
Is there a basis or even a need for anti-hopping laws? I do not think so.
MIS
I have my reservations about the correctness of these views. Though the “morality” of a decision by a particular member of parliament to cross over may be questionable, there are several inter-locking aspects that must be considered. As will be shown, these center on two core themes: the freedom of association and the freedom of choice.
It would be best to deal with the more obvious aspects of the issue. The Federal Constitution guarantees the freedom of association (Article 10(1)(c)). The Supreme Court in 1992 decided that this freedom necessarily includes the right to dissociate (Dewan Undangan Negeri Kelantan & Another v Nordin Salleh & Another). In so concluding, the Supreme Court struck down as unconstitutional legislation by which the Kelantan state constitution had been amended to declare a seat vacant if a member of the state legislature resigned from or left his/her political party. The Nordin Salleh decision has become foundation for the proposition that anti-hopping laws are unconstitutional.
It must be noted that Parliament can however legislate laws that impact on these freedoms if such laws are deemed “necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality” (Article 10(2)(c)). It would follow that if crossing over were a threat to security, public order or morality, it would be permissible to enact laws to restrict the right to association and, concomitantly, the right to dissociation. I believe that in articulating the positions they do, Datuk Zaid and Professor Shad rely on this proviso.
There is a difficulty with this view.
The proviso allows for encroachment into a guaranteed fundamental liberty. Constitutionally guaranteed liberties are jealously guarded as they represent the foundations of the free choice that democracies are built on. It is a hallowed principle of constitutional law that encroachment is allowed for only where the Constitution permits such encroachment. Further, those provisions that allow for such encroachment are to be interpreted narrowly so as to allow only for a degree of encroachment that is essential to achieve the aim underlying such provisions. It is apparent that the proviso in Article 10(2)(c) is aimed at ensuring public security and public morality. The standard of morality that decisions are to be benchmarked however is the general standard of the community as a whole and not the standard adopted by certain factions within the community. This is an important feature of this discussion and I will return to it.
Further, it is settled principle that encroachment is permissible only to the extent that it falls within a margin referred to as the “margin of appreciation”. The boundaries of the margin, as is clear from the expression of the constitutional provision, are defined by “necessity”. Whether there is a necessity is not to be determined subjectively. Jurisprudence on this issue points to an objective assessment of a given situation to determine whether such encroachment is necessary in the interests of democracy, having regard to public security or morality. If so, then an incursion is permitted. This is however not to be taken as a blanket right on the part of legislature to enact laws as it pleases. The incursion must be proportionate to the nature of the threat sought to be dealt with.
From the above, it is clear that encroachment is permissible but within a very narrow margin. The question is therefore whether the reasoning advanced in support of a call for anti-hopping legislation falls within that margin.
Before considering the question, it would be useful to remind ourselves that the Federal Constitution and the state constitutions do not limit candidates for elections at the federal and state levels respectively to members of political parties. In fact, the Federal Constitution expressly declares that unless disqualified every citizen resident in the country qualifies for membership (Article 47). Election laws reinforce this position further. This is why independent candidates are qualified to stand for elections. I have made a point of reiterating this to demonstrate that from the constitutional and legal perspective, voters vote individuals rather than parties. No matter the social considerations, in particular trends that point to some voters voting by reference to parties rather than individuals, when determining the legality of a situation (and conversely, to determine whether a situation should be made illegal), it is the constitutional and legal perspective that matters.
From this perspective, it is not readily apparent that a member of parliament is, as some have suggested, “cheating” his constituents by leaving the political party he was in when elected. The assumption in law is that he was voted in as an individual and not as a member of a political party. That the characterization (of cheating) is used loosely as is clearly shown by the fact that it is improbable that a member of parliament could be charged, let alone convicted, of the offence of cheating for leaving his party.
We must therefore address the question by asking ourselves whether it is wrong to firstly, dissociate from a political party, and if no, then whether dissociating is made wrong by joining another political party. In my view as the former cannot be answered absolutely in the affirmative, then the latter must be answered in the negative. My reasoning is as follows.
I have already explained the ‘personal’ as opposed to ‘party’ basis of elections. Let us explore that further by assuming that a member of a particular party has been elected a member of parliament. He is then required by the political party to do something – for instance, involve himself in corruption – that he doe not agree with as a matter of principle. He sees that corruption has become so entrenched that, in effect, it stands in as an ideology of the party. He decides that he can no longer associate with the party and its members for their advocating of corruption. Is it being suggested that he cannot leave the party?
The example is an extreme one but it goes to illustrate how nuanced the question really is. In order to enact anti-hopping legislation, all the nuances will have to be considered. And as this is done, it will be progressively seen that it would be impossible to predict with certainty the various permutations involved. For a law to be enacted, it must be capable of certainty. The possible scenarios that present themselves do not allow for the level of certainty required of legislation. Not every case of dissociation and cross-association is necessarily immoral as some suggest. In fact, some might see such actions as not immoral at all.
The political perspectives of party members who’s interests may be affected by such actions is not a true perspective and cannot be made the basis of law.
I can however see that there is sense is establishing a basis for deterring disassociations and cross-associations committed in bad faith. I believe that the basis is already in existence. There are laws pertaining aimed at preventing corruption that can be invoked if in fact members of parliament were ‘bought off’ by opponents. If such action involves elements of criminality, the Penal Code provides for a range of offences. There are also offences created under the Election laws.
And above all, there is the voter whose perception of a particular member of parliament will be affected by actions on the part of the latter that are seen as morally wrong. The fact that a member of parliament will lose credibility and be seen as untrustworthy and lose the next election is the strongest deterrent.
Is there a basis or even a need for anti-hopping laws? I do not think so.
MIS
