Anti Hopping Constitutional Convention

English: Ballot Box showing preferential voting
English: Ballot Box showing preferential voting (Photo credit: Wikipedia)

I had this rather unsatisfying discussion with Prof Johan in Constitutional Law class about anti-hopping laws (good thing it did not come out for my exams). We were learning about Article 10 of the Constitution, particularly in relation to the Nordin Salleh case, when this issue came up.

Now, the Constitution clearly does not recognise any concept of a ‘party’ or a ‘coalition’. So, it is clear that the Constitution only cares about voting for the person as the elected representative – it should not matter which side the person takes as long as he/she takes the side of the people he/she supposedly represents.

That is all fine and good in theory. However, we’re often asked to vote along party lines regardless of which donkey or monkey is running. The reason is that the party will fight for our struggles and not any specific elected person. The party maintains discipline by ensuring that all elected representatives tow official party lines.

The Constitution was drafted with the assumption that people will vote for the person. As the elected representative of the people, he/she should be free to associate, in the best interest of the people. However, in practice, we end up electing the representative of the parties who end up working in the best interest of the party who put them there, not the people.

This is the crux of the problem.

My argument was that while Article 10 right to freedom of association is sacred, this must be balanced against the voice of the voters to be heard – the trouble being the archaic tradition in Malaysia of voting for the party and not the person.

Until the day comes where our electorate are mature enough and our candidates are human enough for us to vote for the person, we will need better controls. However, I too believe in protecting the liberty of a person to associate freely.

The solution that I propose is a simple one.

We strike a balance between the freedom of an individual to associate with that of the voice of the people to be heard. Both rights are sacrosanct and important in a healthy democratic system. So, the simplest solution would be to vacate an MPs seat if he/she changes parties after the elections.

The way I see it, it’s like a sort of an agreement between the MP and the electorate. During campaigning, the MP promises to accomplish certain things in return for the trust that the electorate puts in him/her. If the MP decides to change parties and thus change the objectives that they have promised to accomplish, he/she has reneged on that trust.

So, the proper way would be for the MP the seat to be vacated and to ask for a fresh mandate from the people. This way, the MP is still able to freely associate and the voice of the people can be clearly heard. I call that a win-win.

Now, there is no Constitutional provision for this though there is no reason that any Law that requires the MP to seek for a fresh mandate would be ultra-vires the Consti. That said, it would be painful to enforce this.

If we want to mandate that the seat be vacated upon switching parties, the Constitution would need to be amended to recognise the concept of a party. That would bring a whole world of pain on its own. The same problem would occur if we wish to mandate that an MP shall resign his/her seat when switching parties.

This is where the concept of Constitutional Conventions come in. The best way to solve this problem is to make it a convention. Alternatively, party constitutions can be amended to bar any MP who ran under other party banners from joining a new party without first vacating their seats.

It is actually in the best interest of all parties to avoid jumpers.

However, praying for politicians to act in the best interest of anyone other than themselves, is folly.