Party defections in Malaysia: Managing the ‘frogs’

Instead of resigning to cynicism, Danesh Prakash Chacko appeals to the public to study various ways of tackling this and to push for the necessary legal amendments.We are no strangers to the world of legislators switching allegiances during their term of office.The number of defections hit unprecedented levels in 2020 when the elected Pakatan Harapan federal government collapsed, followed by the fall of a string of PH state governments.Voters may feel betrayed and may refuse to come out in big numbers for future elections. However, it is important to examine the reasons behind defections and measures to manage this issue.Beyond the minimalistic view that a legislator defects to get a better deal, let’s examine the general motivations behind such moves (Heller and Mershon, 2008):

• A legislator’s policy positioning
• Political party positioning
• The ability of a political party to influence outcomes
• The ability of a legislator to influence such outcomes

With these points in mind, we must contextualise the issue of defections within our electoral system and laws. In Malaysia, we elect individual candidates in various constituencies to represent us in Parliament and various the state assemblies. An important question arises: are we voting for the candidate, the party or both?Second, some have called for defectors to resign without understanding there is a deterrent for the legislators concerned. Our current laws deter defectors from resigning as they will be disqualified from contesting in elections for the next five years.While this might make us feel hopeless, we should reflect on two main options.

Option 1: Recall electionsAccording the to International Institute for Democracy and Electoral Assistance (Idea), a recall election is a procedure for the voters to remove their legislator through a direct vote before that official’s term has ended. This will allow the voters to control the behaviour of their legislators. Recall elections can also be used when the voters perceive their legislators are not performing to expectations.According to International Idea, recall elections have two main stages:

• The initiation of the recall process when enough signatures are collected to support the recall
• Upon the attainment of the required level of support, duly verified, the recall vote takes place

Some key considerations for this mechanism:

• Any voter of a given constituency who is 18 and above may launch the recall
• Signatures should only be collected once the proposed initiative for recall is successfully filed at the Election Commission. Four months are given to collect signatures
• The recall vote will only be called if the petition draws the support of 10% of the current registered voters of the constituency. All signatures must be verified prior to the start of the recall vote
• The process of recall votes and nominating the successor should be separate. This vote must be carried out within 60 days of recall vote gaining the necessary support
• The incumbent will be removed if a majority of the registered voters who take part in the recall are in favour of removing him or her
• The defeated incumbent should be given the right to contest in the by-election

While this mechanism is laudable, we should be aware of the cost of this process. Conducting a by-election is expensive. If recall vote results in the removal of the representative, it will trigger a by-election. At present, each by-election for a state assembly seat costs RM1m-RM2m, and for a parliament, it costs RM3m-RM4m. With a recall process, there would be additional costs such as the cost of verifying signatures, the drafting of the specific proposal and the conduct of recall voteOption 2: Limited anti-defections lawA law that deters party defections would disqualify the legislator from continuing with his or her term in the legislature in the event of a defection or expulsion from the party. Advocates of such a law argue that it would deter defectors from breaching the trust of voters. It would strengthen the parties and promote accountability. It would also prevent larger parties from enticing legislators from smaller parties with the promise of rewards.There are variations of such laws to deter defections around the world that deal with the following situations where an elected representative loses his or her seat:

• he or she resigns from the original party
• he or she moves to another party
• he or she is expelled from the original party

The main benefit of this mechanism is the consequences for defectors is immediate. The only financial implication would be the cost of conducting a by-election.However, an all-encompassing anti-defections law will strengthen the grip of political parties over their representatives. We may introduce a bigger problem where our legislators could ignore the will of the people to avoid being expelled or losing their seats.I advocate a limited version of an anti-defections law. Here are the proposals:

• Adding an element to Article 10(2)(c) so that such defections are deemed prejudicial to public interest (Loh 2020)
• Adding an element to Article 50  so that legislators lose their seats in Parliament if they resign from the party (under whose banner they stood in the previous election)
• Repealing Article 48(6), which would allow representatives who have resigned the right to contest immediately. Similarly, the state constitutions should be amended

Instead of resigning to cynicism, I appeal to the public to study and push for these amendments. Ultimately, it is the people of Malaysia who need to move from ‘cyber-rattling’ and implement measures to rein in our elected legislators.

This article first appeared in Aliran on 24 June 2020.