Political parties, over-anxious for vote catching, become tolerant to intolerant groups.— Wendell Willkie, American lawyer
A political party in Sarawak recently unleashed a refreshingly bold concept to discourage party-hopping by imposing a minimum RM20 million penalty upon those who decide to play pucks with Article 10(1)(c) of the Federal Constitution (FC) that continues to elude constitutional interpreters.
The right to form associations, or the right to associate with someone or something, or even the right to disassociate from someone or something is up in the air defying political gravity when you consider the phrase “all citizens have the right to form associations.”
I am told that a former prime minister had his Cabinet members sign an undated letter of resignation in case he or she stepped out of line and refused to tow the party line. That is certainly not against the law.
Discouraging party hopping by imposing a hefty fine is not a new concept in law. For example, a cognovit note (confession of judgment) is usually demanded by one party as insurance when the other party defaults. This certainly stands up in a court of law.
“Blind commitment to a theory is not an intellectual virtue: it is an intellectual crime,” opined Imre Lakatos, and that holds true when misinterpreting Article 10(1)(c) FC for spurious and suspect purposes.
Meanwhile, the voters should not remain confused.
But, let’s visit Article 10(1)(c) FC and find light to the temporary darkness that assails us with eight ambiguous words: “All citizens have the right to form associations.”
The answers you get will depend on the questions you ask.
Question 1: Why didn’t the Reid Commission simply say “all citizens shall have the right to be associated with one single political party when intending to be a contestant in an election.” The “shall have the right” qualifies a scenario when a citizen’s rights to be associated with one single party is abridged.
Question 1 also takes care of the scenario of staying loyal to one single political party when the elected representative represents his or her constituency under that particular single political party ticket.
Question 2: Why didn’t the Reid Commission simply say “no citizen shall be allowed to switch political parties upon election under one political party’s ticket.” No ambiguity there at all.
Question 3: Why didn’t the Reid Commission qualify and specify the ifs and buts of certainty and consistency by adding enlightening sub-sections to the misleading eight words?
The issue of raising a challenge in court for party hopping is not a toss of the dice when Article 118 FC becomes the principal threshold issue in a statement of claim praying for relief from a court of law.
The 1992 federal Court decision in the Nordin Salleh case declared that anti-hopping law at the state level is unconstitutional. It left unanswered the question of the validity of an anti-hopping law at the federal level.
Given the latitude and attitude of freedom of speech, expression and assembly under with Article 10(1)(c) read in conjunction with Article 118 FC should ignite constitutional fireworks to dispel the darkness of misinterpretation, no thanks to misleading opinions.
Enter Article 51 FC mandates the requirement of a resignation by any parliamentarian. This is a prelude to anti-hopping laws. Why should a parliamentarian resign unless he or she intends to switch loyalties and allegiances?
Article 53 FC also provides an answer to anti-hopping laws when it calls for disqualification of an elected representative.
Article 49 FC — Provisions against double membership — creates a scenario when a parliamentarian under party A’s ticket should be discouraged to leave that party and become an Independent which has overtones of double membership.
It is clear that the FC does indeed provide remedies and solutions to discourage party hopping, crossing the floor or party defection. It is up to leaders in the public and private sectors to take up cudgels on behalf of the citizenry.
A meaningful law to proscribe, prescribe, permit, promote and protect voters’ rights is long overdue. A freedom to associate and a freedom to disassociate must not be confused when a clear statutory or constitutional language is available.
The recent call by that caring Sarawak political party to find a robust remedy should not be taken lightly or scoffed. There is merit to this proposal which it would enforce within its own party ranks. Other political parties should get serious.
The State Legislative Assembly must become progressive and proactive to work out a statutory scheme to hammer in the last nails into the coffin of uncertainty and doublespeak.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.