An Exploration of Remedies

A Report Commissioned by BERSIH 2.0 HOW TO DETER PARTY HOPPING in MALAYSIA? An Exploration of Remedies

by Wong Chin Huat

HOW TO DETER PARTY HOPPING in MALAYSIA? An Exploration of Remedies

by Wong Chin Huat

The copyright of this research report belongs to The Coalition for Clean and Fair Elections (BERSIH 2.0). All or any part of this research report may be reproduced provided acknowledgement of source is made or with BERSIH 2.0 permission. BERSIH 2.0 assumes no responsibility, warranty and liability, expressed or implied by the reproduction of this publication done without BERSIH 2.0 permission.

This report may be cited as Wong, C.H. (2021). How to deter party hopping in Malaysia? An exploration of remedies. Bersih 2.0. https://www.bersih.org/wp-content/ uploads/2021/01/Bersih-Policy-Research-Party-Hopping-In-Malaysia-An-Exploration- of-Remedies.pdf

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Written by: Wong Chin Huat

Research assistance by: Wo Chang Xi

Graphic and layout: Shahrin bin Abdul Samad Contents Executive Summary...... 1 1 Party-hopping...... 7 1.1 Definition...... 7 1.2 The Malaysian Context...... 8 1.3 Issues and Implications...... 9 1.3.1 Argument for Freedom to Defect...... 9 1.3.2 Arguments against Freedom to Defect...... 10 1.3.3 Objectives and Goals...... 11 1.4 Remedies...... 12 1.4.1 Anti-Hopping Law (AHL)...... 12 1.4.2 Recall Election Law (REL)...... 14 1.4.3 Electoral Mandate for Parties...... 14 1.4.4 Confidence and Supply Agreement (CSA)...... 14 1.4.5 Empowerment of Opposition Lawmakers and Government Backbenchers...... 15 2 Anti-Hopping law (AHL) – Comparative Experiences...... 16 2.1 India...... 16 2.2 South Africa...... 18 2.3 New Zealand...... 20 2.4 Taiwan...... 21 3 Recall Election Law (REL) – Comparative Experiences...... 23 3.1 Taiwan...... 23 3.2 California, United States...... 25 3.3 United Kingdom...... 28 4 Issues with Anti-Hopping Remedies in Malaysia...... 31 4.1 Anti-Hopping Law (AHL)...... 31 4.1.1 Ban on Recontesting after Resignation...... 31 4.1.2 Four State-Level AHLs in Malaysia...... 32 4.1.3 Legal Obstacle at Both the Federal and State Levels...... 35 4.1.4 Coalitional Realignment...... 36 4.1.5 More Controlled Lawmakers and Weakened Legislatures...... 37 4.2 Recall Election Law (REL)...... 37 4.2.1 Constitutional Hurdle Only at the Federal Level...... 37 4.2.2 Multiple Purposes...... 38 4.2.3 Protecting Voters’ Mandate Without Strengthening Parties...... 39 4.2.4 Longer Process and Higher Cost...... 38 4.3 Sabah 2020 – Where Both AHL and REL would have Failed...... 40 4.4 Electoral Mandate for Parties...... 42

i How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Contents

4.5 Confidence and Supply Agreement...... 43 4.6 Empowerment of Opposition Lawmakers and Government Backbenchers...... 43 4.6.1 Legislative Reform...... 44 4.6.2 Limiting “Expanded Payroll Vote”...... 45 4.6.3 Equitable Constituency Development Fund (CDF)...... 48 4.6.4 Decentralisation and local democracy...... 49 4.6.5 Equality before the Law and State Apparatus...... 50 5 Recommendations for Malaysia...... 52 5.1 Objectives and Goals...... 52 5.2 Specific Recommendations...... 52 5.2.1 Recall Election Law (REL) under FPTP...... 52 5.2.2 Anti-Hopping Law (AHL) for CLPR Lawmakers in Mixed Member Majoritarian (MMM)...... 55 5.2.3 Freedom to Recontest after Resignation...... 57 5.2.4 Confidence and Supply Agreement (CSA)...... 58 5.2.5 Legislative Reform to Empower Non-Executive Lawmakers...... 58 5.2.6 Limiting ‘Expanded Payroll Vote’...... 58 5.2.7 Equitable Constituency Development Fund (CDF)...... 59 5.2.8 Decentralisation and Elected Local Governments...... 59 5.2.9 Equality before the law and state apparatus...... 59 5.3 Options and Actors at a Glance...... 60

Acknowledgement: This paper benefits greatly from the excellent research assistance provided by Mr. Wo Chang Xi.

ii List of Tables

Table 1.1 Major Defections and Realignments in Malaysia – Governments and Parties Affected...... 9

Table 1.2 The Contradicting Principles of Ideal Electoral Systems in Parliamentary Democracies...... 13

Table 1.3 Electoral System by Recipients of Mandate...... 13

Table 3.1 Fundamental Differences in Recall Mechanisms in Taiwan, California and United Kingdom...... 23

Table 3.2 Recall of MPs Act petitions by constituency in 2018-2019...... 30

Table 4.1 State Level AHLs in Malaysia...... 32

Table 4.2 A Benefit and Cost Analysis of Having an Anti-Hopping Law and Recall Election Law (REL)...... 40

Table 4.3 Electoral Fortune of Party-hopping or Coalition-changing ADUNs in Sabah, 2018-2020...... 41

Table 4.4 Malaysian Parliamentarians by National Roles as of December 5, 2019*...... 45

Table 4.5 Payroll vote in Muhyiddin Government by Party (as of 7 June 2020)...... 46

Table 4.6 PN’s ‘Additional Payroll Vote’ by Party...... 47

Table 5.1 Legal and Realistic Estimates of Time Required for a Successful Recall Election with 1% and 10% Initiating and Supporting Thresholds...... 54

Table 5.2 Implementing Remedies to Party Hopping at the Federal and State Levels...... 60

iii

How To Deter Party Hopping in Malaysia? An Exploration of Remedies How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Executive Summary

Issues and Goals

Party hopping (or in a more neutral term, change of party affiliation) covers a wide range of actions by, or developments affecting, lawmakers: voluntary resignation from party, expulsion from party, defying party’s instruction in legislative voting, party merger, deregistration of party and, for an independent or partyless lawmaker, joining a party.

Remedies that fail to recognise complexities are likely to be ineffective or even counter-productive. To start with, we need to separate two objectives frequently invoked when we think about stopping, deterring or neutralising party hopping.

The first and procedural objective is to restore voters’ control on electoral mandate given to representatives, so that a change in the latter’s party affiliation must be consented by voters or risks being punished with seat vacancy. This reminds us of the centuries-old debate since Edmund Burke argued that parliamentarians are trustees rather delegates of their constituents.

The second and substantive objective is to preserve the balance of power emerging on an election night, so that party labels are stable and predictable until the next election is called. This objective can be problematised by two potential developments: first, parties may split and merge; second, when no party wins a simple majority and a government is formed through pre- or post-election coalition, coalition may be realigned.

We need to balance both objectives in designing effective and meaningful remedies, which may have to come in a package. On the one hand, a singular focus on voters’ consent over lawmakers’ party affiliation change may result in lawmakers constantly changing parties yet winning by-elections or surviving recall elections, if they can command voters’ loyalty through clientelism. On the other hand, preserving election-night balance of power at all cost may prevent parties to undergo necessary split or merger to be more effective election and policy machines.

Considering the complexity in remedying party hopping, we propose following four goals in descending order of priorities: 1. Effective legislative oversight; 2. Meaningfully-differentiated parties; 3. Stable governments; and 4. Accountable representatives.

The procedural objective is now the lowest goal of ensuring accountability of elected representatives while the substantive objective in preserving election-night balance of power is translated into the next goal of stable governments. We hold neither of these as an end in themselves but rather just a mean to achieve two higher goals in having multiparty competition. The next goal is meaningfully differentiated parties, so that voters can choose between different policy packages. The ultimate goal, to which having parties offering different policies is a means, is effective legislative oversight on the Executive, preventing the emergence of elected dictatorship in between elections.

1 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Anti-Hopping Law (AHL) and electoral system

We study four sets of AHLs covering different types of lawmakers under four types of electoral system: 1. India covering all its federal and state lawmakers, both elected under First-Past-the-Post (FPTP) and nominated by President; 2. South Africa covering all its lawmakers, under Closed-List Proportional Representation (CLPR) at the national and provincial levels and Mixed Member Proportional (MMP) atthe local level; 3. New Zealand covering both its FPTP and CLPR parliamentarians; and 4. Taiwan covering only its CLPR national parliamentarians under Mixed Member Majoritarian (MMM) .

Studying India and South Africa, Spiess and Pehl (2004: 217) argue that party defection should be analysed from the perspective of electoral system. This is because constituency-based plurality system or FPTP and list-based proportional representation (PR) have different principles in representation, decision and accountability.

We find AHL to be compatible with CLPR, in which mandate is given to parties instead of candidates. We are also convinced by the logic of proportionality in New Zealand’s AHL that also binds FPTP lawmakers – notwithstanding their personal mandate – because MMP is grounded on proportionality. However, when mandate is personal as in India’s FPTP, or when proportionality is not the over-arching principle in representation as in Taiwan’s MMM, AHL is too costly a tool to build cohesive parties or stable governments. AHL gives party leaders powerful control over their MPs, makes backbench revolt impossible, and may produce rubber-stamp legislatures when the government commands a solid majority.

In Malaysia, AHL faces two extra obstacles. First, the Supreme Court ruled in 1992 that AHL restricts freedom of association for lawmakers, which is ultra vires for state laws. This has nullified state- level AHLs in Kelantan and Sabah. Without a change in the Federal Constitution, federal laws or the the Federal Court’s position, this verdict will likely nullify other AHLs including the one introduced by Penang in 2012. Second, a standard AHL may not stop government collapses due to coalitional realignment like what happened to Pakatan Harapan in February 2020.

Recall Election Law (REL)

We study RELs in three different jurisdictions: Taiwan; California, the United States; and the United Kingdom. UK’s Recall of MPs Act differs from most RELs in the world in two ways: (a) the grounds to initiate a recall are restricted to only law-breaking and misconduct by MPs; (b) it has a very low threshold – 10% signatures of voters collected within six weeks – to pass but recalled incumbents can recontest. Both the RELs in Taiwan and California do not restrict grounds for recall, have higher thresholds than the UK one and bar recalled incumbents from contesting in the by-election. Their main difference lies in the Californian innovation of combining by-election with the recall election, where voters are asked to choose amongst replacement candidates if the recall is successful. This saves the time and energy from having two elections, but it also complicates options for both parties and voters.

We are convinced that REL can be used to remedy and deter party-hopping under FPTP as in the cases of Taiwan, California and the UK. While the existing British REL does not allow for its use on party hopping, a new bill - a Recall of MPs (Change of Party Affiliation) Bill 2019-21 - is scheduled for its second reading in January 2021.

2 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Other Measures to Stabilise Governments and Strengthen Parties

Strictly speaking, both AHL and REL under FPTP are means to the procedural objective of restoring voters’ control of electoral mandate, not the substantive objective of preserving election-night balance of power. AHL under FPTP and REL do not deter party-hopping and promote government stability if voters do not punish party-hoppers. The re-election of 11 out of 17 party-hopping lawmakers in the 2020 Sabah state election exemplifies this point.

To prevent government collapses due to defections from government to opposition, the most natural solution is for a government with no or only a questionable majority to sign a “Confidence and Supply Agreement” (CSA) with some opposition parties.

To deter party-hopping, rules of the game in “status upgrade” for lawmakers – from opposition to government, from government backbenchers to ministers/executive councillors – need to be rewritten.

First, the differentials between winners (government/ministers) and losers (opposition/government backbenchers) in terms of power and resources need to be narrowed. These include 1. assess to Constituency Development Fund (CDF) and other state funds (carrot); and 2. risk to prosecution and harassment by law-enforcement agencies (stick).

Second, the quantity of major carrots available for party-hoppers including ministerial posts and remunerative political appointment should be capped, collectively known as “expanded payroll vote” (Zolgekar, 2019; Wong, 2020a).

Thirdly, parliament/legislature must function optimally to encourage programmatic competition based on policy and legislative oversight, so that working hard in their current positions can help

1. opposition to win the next election and be government 2. government backbenchers to join the frontbench such that they have no need to cross the floor for an immediate “status upgrade.”

Nine Recommendations

After considering experiences of six other jurisdictions and conditions in Malaysia, we propose a package of nine recommendations to remedy party hopping in Malaysia.

1. Recall Election Law (REL) for Existing FPTP lawmakers

We recommend a limited version of citizen-initiated Recall Election mechanism taking a leaf each from Taiwan and UK, which may be introduced separately at both the federal and state levels, with only three permitted grounds: a. changing party or coalition affiliation – including independents joining a party – after election; b. conviction for any non-compoundable offences; and c. absence in the House for more than 80% of sitting days in a consecutive period of six months, leave permission by Speaker notwithstanding.

3 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

The second and third grounds are to supplement current constitutional provisions that disqualify lawmakers if they were to be sentenced by courts to a jail term of a year or a fine of RM 2,000 or if they were to be absent without leave from legislative sitting for six months. With this REL, the discretionary power to let off law-breaking or truant lawmakers will be transferred from judges or speakers to voters.

A petition can only be initiated by 1% of registered voters in a constituency and a recall election will only be held if the petition is supported by another 10% of voters within eight weeks after the acceptance of the petition by the Election Commission (EC). Finally, a recall petition is successful only if it passes both these thresholds:

a. more consenting votes than dissenting; and b. consenting votes exceed 50% of registered voters or the number of votes won by the incumbent in the last election, whichever the lower.

The EC will be given one and three weeks respectively to verify the signatures of the 1% initial voters and the 10% supporting voters while the petitioners will be given up to six weeks - from the verification of the initial 1% signature - to collect the 10% supporting signatures. The EC must conduct the by-election within two weeks after the 10% supporting threshold is met.

This stipulates a legal 14-week period for the recall process, starting with the submission of 1% initiating signatures. The actual timeline depends on the collection of the 10% supporting signatures. If the 10% threshold can be met within a week – likely if the incumbent’s party-hopping has caused the wrath of voters – then the entire process can be halved. The period is kept short to deter party hopping.

We do not recommend the Californian model of combining recall election and by-election, not only because it causes complications for both parties and voters, but also because it requires more modifications to the current system and provides more excuses to block the introduction of recall elections.

2. Anti-Hopping Law (AHL) for Party-List Lawmakers in Mixed Member Majoritarian (MMM)

We recommend AHL only for lawmakers elected under Closed List Proportional Representation (CLPR) and not under First-Past-The-Post (FPTP). CLPR seats should be added to the existing FPTP seats to constitute a Mixed Member Majoritarian (MMM) system as in Japan, Taiwan, Italy and Mexico.

AHL is not recommended for FPTP lawmakers on two grounds. First, it will not address Malaysians’ anger and frustration over collapse of pre-election coalition governments which drives the call for AHL now. Second, while AHL can curb defection, fragmentation and splintering when parties are weak, it can also produce a rubber-stamp parliament or state legislature when the government commands a solid majority.

In contrast, AHL is compatible with CLPR seats as both reinforce party-based representation. Because a sizeable portion of CLPR seats can make hung parliaments and post-election coalition governments likely the rule than the exception, collapse of pre-election coalitions will also become an insignificant issue. Post-election coalitions are also normally too weak to dominate the legislatures.

4 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Instead of a complete replacement of FPTP with CLPR, we deliberately recommend retention of FPTP seats so that popular incumbents still stand a chance to get elected under FPTP even if they are dropped as candidates by party leaders. CLPR will leave party leaders with absolute power in deciding the sequence of candidates and may produce powerful parties that survive on communal support and suppress dissents within the party. In the worst scenario, such parties may form a solid cartel to monopolise and share Executive power and disempower the legislature.

For the same consideration to allow dissidents amongst FPTP lawmakers, we recommend MMM over MMP, in which the logic of proportionality necessitates AHL on FPTP lawmakers. As argued earlier, the mechanism to protect voters’ mandate on FPTP lawmakers is through REL. If a high degree of proportionality is desired, then the MMM introduced can have 50% or even more of CLPR seats.

Under its AHL, CLPR seats will be vacated when a lawmaker leaves or is expelled from the party/ coalition s/he represents in election. It will not apply upon dissolution of a party or coalition, merger of parties, or if a lawmaker resigns from his/her party upon his/her election as speaker.

3. Freedom to Recontest after Resignation

We recommend the repeal of Article 48(6) in and Section 6(5) of the Eight Schedule to the Federal Constitution and corresponding provisions in state constitutions in states other than Penang so that incumbents are free to resign and seek a new mandate in by-election, whether or not it is due to a change of party or coalition affiliation.

4. Confidence and Supply Agreement (CSA)

We recommend CSA as the standard practice when governments do not have a solid legislative majority to survive confidence and supply votes. This can immediately stablise governments without any changes in constitutions and laws. If the CSA can close the differentials between government and opposition lawmakers, then it will also reduce the incentives for resource-driven defection of opposition lawmakers.

5. Legislative Reform to Empower Non-Executive Lawmakers

We recommend the following, at both the federal and state levels, where applicable: • Longer duration of parliamentary and legislative sittings, that MPs should meet around 135- 150 days a year; • Select committees to ensure both every ministry/executive portfolio is scrutinised by one committee and every non-Executive lawmaker sits on at least one committee; • Recognition of Shadow Cabinet with access to key government information; • An effective avenue for private member’s bills comparable to the balloting mechanism in the UK House of Commons; • Multipartisan agenda setting including the provision for non-government business days; • Parliament’s own bureaucratic service including a strong research arm to assist all MPs.

5 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

6. Limiting ‘Payroll Vote’

We recommend the following: 1. Limiting the total of federal government frontbenchers – ministers, deputy ministers and parliamentary secretary (if any in the future) – to 50 or not more than 20% of the members of Dewan Rakyat (currently 222), whichever is lower. This will cap it at 44 now. 2. Barring all elected representatives from holding any paid position in any agency or company owned or controlled by the Federal Government, any State Government or any Local Authorities.

7. Equitable Constituency Development Fund (CDF)

We recommend legalised provision of equitable and well-regulated Constituency Development Fund (CDF) for all lawmakers at both the federal and state levels.

8. Decentralisation and Elected Local Governments

We recommend the following: 1. Decentralisation for some federal powers to be transferred to the states so that the state lawmakers can have more rooms for legislation and policy formulation. Without this, state lawmakers will have little space for programmatic competition; and 2. Elected governments for three Federal Territories, divisions for Sabah and Sarawak and local authorities in West Malaysia. This will make local governments more responsive and reduce the demand on federal and state lawmakers for constituency service and funding.

9. Equality before law and state apparatus

We recommend the following: 1. A Public Prosecution Office independent from the Attorney-General’s Chambers (AGC); 2. Making the Malaysia Anti-Corruption Commission answerable to the Parliament instead of Prime Minister’s Department; 3. Expansion of parliamentary privileges to cover federal and state lawmakers from detention without trials; and 4. Better safeguards to protect political dissidents from persecution under Emergency.

6 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

1 Party-hopping

Malaysians have witnessed collapses and replacements of seven governments in the year 2020, all caused by lawmakers changing parties and/or parties realigning coalitions. After the replacement of the Pakatan Harapan (PH) Federal Government by the newly-assembled Perikatan National (PN) coalition in February, governments have changed hand in Johor, Malacca, Perak (twice) and Kedah without going through elections. In Sabah, en bloc defection of 13 state assemblypersons (ADUNs) brought down a state government which at one point enjoyed a two-third majority and the subsequent snap election installed a new government. The new Federal Opposition PH also tried to recapture power by orchestrating defection of PN parliamentarians but his “strong, formidable and convincing” majority has not materialized at the point of writing.

These successful and failed attempts to change the government after elections have evoked many Malaysians’ bitter memory of defections and state government collapses dating back to as early as 1961 and strengthened the calls for an anti-hopping law (AHL) or other alternatives like a mechanism for recall elections or a change of electoral system. In a survey by Center for Governance and Political Studies (Cent-GPS) released in December 2020, 50% respondent expressed their confidence that an AHL can end the current political impasse and another 37% answered “be” while only 12% saw no such need. (Cent-GPS, 2020)

This chapter invites you to objectively examine the phenomenon of “party hopping” and the arguments for and against lawmakers’ freedom to defect before looking at an extensive menu of remedies. As partisan sentiments run high in all sides of the political divide, an informed preference on this matter is even more necessary.

1.1 Definition

“Party-hopping”, “floor-crossing”, “carpet crossing”, “waka jumping” (New Zealand), “defection”, all these different names capture an important phenomenon that threatens stability of parties, balance of power in legislatures, survival of governments and ultimately meaningfulness and viability of democracy. (Malhorta, 2005; Janda, 2009; Noklenyi, 2016; Spiess and Pehl, 2004; Subramaniam, 2008)

In a generic and neutral term, we are looking at “change of party/coalitional affiliation” concerning, not all politicians, but only elected representatives. In other words, it concerns not how frequently any politician changes his/her affiliation, but only incidences when an elected representative changes his/her affiliation between elections, thus affecting the balance of power in legislature and government. As Malaysia has no directly elected executive officers, this paper covers only legislators.

Remedies that fail to recognise the complexity of the problems are likely to be ineffective or even counterproductive. Depending on the definition adopted, change of a lawmaker’s party affiliation can happen in up to six circumstances:

−− A lawmaker elected on a party’s ticket voluntarily leaving the party, whether to join another party or become partyless, as commonly understood; −− Such a lawmaker being involuntarily expelled from the party, normally covered by anti-hopping law because defecting lawmakers will otherwise be unpunished as long as they do not voluntarily leave the party; −− Such a lawmaker defying the party’s instruction in legislative party’s voting, as provided for by the AHLs in India and New Zealand;

7 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

−− Such a lawmaker becoming a member of another party as a consequence of party merger, which is conditionally exempted from penalty by the AHL in India; −− Such a lawmaker becomes partyless as his/her party was deregistered, which is exempted by the AHLs in India and Penang; and −− An independent or partyless lawmaker joining a party after his/her election, as provided by the AHLs in India and Penang.

Voluntary resignation or expulsion can sometime be the result of party schism, which was once conditionally exempted by the Indian AHL. Resignation from party upon election as speaker may also be constitutionally compulsory or politically commendable and this is exempted from penalty by the AHLs in India and Penang.

1.2 The Malaysian Context

It is important to first differentiate between individual, isolated and insignificant defections and en bloc, systemic or significant defections.

En bloc defection may be caused by a split or merger of parties, which can be driven by programmatic preferences, interpersonal relations, resource competition or a combination of the above. The emergence of splinter parties like Semangat 46 (S46), Parti Keadilan Rakyat (PKR), Parti Amanah Negara (Amanah), Parti Pribumi Bersatu Malaysia (Bersatu), Parti Warisan Sabah (Warisan) and the yet-to-be registered Parti Pejuang Tanah Air (Pejuang) and Malaysian United Democratic Alliance (MUDA) can be legally termed as the product of defection under a standard AHL.

Political significance is determined not by the absolute number of defectors, but their relative weights in the balance of power in legislature. The defection of as few as two lawmakers can topple or install a state government as in the cases of Terengganu (1961) and Perak (2018). In other words, the value of a defector is inversely proportional with legislative majority of government. Having said that, even governments with strong majority may still welcome defection of opposition lawmakers to further their dominance, as what happened when infighting drew two Negeri Sembilan state assemblypersons from the Democratic Action Party (DAP) to cross over to Barisan Nasional (BN) in 1995 and gave the latter a 100% control of the state legislative assembly (DUN).

Instead of asking whether defection is due to honest dissent, which no defector would answer in the negative, it is more important to look at the patterns and beneficiary of defections. Regardless of the direction of defection and realignment, the federal government parties – BN before 2018, PH from May 2018 to February 2020 and PN since March 2020 – appear to be the beneficiaries in most cases. The federal opposition parties gained only in two major instances: UMNO’s schisms and the collapse of the PH government in the so-called Sheraton Move. (Wong, 2020a; Chin, 2020) (Table 1.1)

8 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Table 1.1 Major Defections and Realignments in Malaysia – Governments and Parties Affected

Beneficiary Types of Defection and Federal Opposition Realignment Federal Government Parties Parties Johor (2018), Perak (2018) Opposition to Government DAP Negeri Sembilan (1995)

UMNO (1989, 1998, Terengganu (1961), Kelantan (1977), Government to Opposition 2015), Bersatu* (2020) Sabah (1994, 2020), Perak (2009),

Opposition to Opposition Kelantan* (1977) PAS* (2015)

Collapse of Coalition Sarawak* (1966), Sabah (2018), (including defections in some Johor (2020), Malacca (2020), Perak Malaysia (2020) cases) (2020), Kedah (2020)

*complicated/hard to classify

Before we consider the remedies for party hopping, note that there are three types of defections judging by the outcome they produce:

(a) Reinforced control of states by the federal ruling coalition; (b) Emergence of new parties due to party schism; and

1.3 Issues and Implications

From the standpoint of democracy, there is at least one ground to defend lawmakers’ freedom to disassociate or associate with any party and there are at least four grounds to deny or restrict such freedom.

1.3.1 Argument for Freedom to Defect

The argument for freedom to defect is grounded in the role of parliamentarians as trustees instead of delegates of voters. This was famously articulated by the 18th century thinker-parliamentarian Edmund Burke and later by Winston Churchill who changed party affiliation thrice in his life without damaging his standing in history. In 1774, Burke told his constituents in Bristol: “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion … Parliament is not a congress of ambassadors from different and hostile interests, which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is

9 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

not member of Bristol, but he is a member of parliament.” (Select Committee on the Modernisation of the House, 2007) A few days before he resigned as Prime Minister in 1955, Churchill told his audience in Essex: “The first duty of a member of Parliament is to do what he thinks in his faithful and disinterested judgment is right and necessary for the honour and safety of Great Britain. His second duty is to his constituents, of whom he is the representative but not the delegate. Burke’s famous declaration on this subject is well known. It is only in the third place that his duty to the party organization or programme takes rant All these three loyalties should be observed, but there is no doubt of the order in which they stand under any healthy manifestation of democracy.” (King-hall, 1954: 302) A manifestation of parliamentarians’ independence is the tradition of backbench revolt, where by government backbenchers have the liberty to vote against their own government’s bills and motions, unlike ministers and other members of government frontbench – termed “payroll vote” – who must vote in line with the government under the “Cabinet Collective Responsibility” doctrine (Taylor, 2016). A good example is former Labour leader Jeremy Corbyn who voted against his party’s instructions for 428 times in the 13 years when Labour was last in government, or an average 33 times per year. Corbyn, who would have been a notorious repeat offender under India’s AHL, was never sacked or denied candidacy in his constituency. The price he paid was only exclusion from the party’s frontbench until his own election as party leader. (Cowley, 2016; Knight, 2016). It is important to note that this idea of independently and critically thinking parliamentarians is grounded to the First-Past-The-Post (FPTP) electoral system. As a matter of fact, the luxurious freedom to oppose from the backbench is grounded on the bottom-up candidacy selection in major British parties, which allows popular maverick to survive. This is not possible in other FPTP systems if candidacy selection is centralised.

1.3.2 Arguments against Freedom to Defect

The first argument against uninhibited freedom for lawmakers to defect is mandate. Even under FPTP, modern elections in parliamentary systems are hardly won by individual candidates. More than offering resources and machinery for electioneering, parties simplify choices for voters who care about government formation. And in countries with single-party majority governments and strong prime ministers, elites and masses focus their resources with the choice of the next government as the primary consideration, which in turn facilitates British-style bipartism. (Cox, 1997: 193) If voters make their choice based on party label, betraying such choice impairs, if not invalidates, democracy. The next and related argument is grounded on proportionality, such that the interparty balance decided by voters should not be distorted after elections by lawmakers. This exclusively applies to countries with Proportional Representation (PR) elections, like New Zealand and South Africa, because majoritarian systems may themselves distort voters’ choice. An extension from the first, the third argument is about preserving multiparty competition. Defection is a convenient method for big parties to co-opt small party

10 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

or independent lawmakers. The relaxation of AHL in South Africa from 2002-2008 had allowed the African National Congress (ANC) to both prevent other black parties to emerge as its rivals and to check the growth of the main opposition Democratic Alliance (DA). More than stunting the opposition, frequent and rampant defections destroyed consistency and differences between parties. Speaking of the Philippines where the two main parties, Nacionalistas and Liberals, exchanged a quarter to one-third of congress representatives after presidential elections in 1961 and 1965, Montinola (1999: 134-135) pointed out that “the parties’ lack of political consistency and unbridled party-switching by politicians understandably reinforced the notion among voters that parties were neither robust nor meaningfully differentiated. In fact, parties were merely temporary electoral and legislative alliances designed to maximize the election chances of individual politicians”. The fourth argument is about stability of governments. Defections that plagued Indian politics since 1967 did see state governments changing hands frequently. This followed the decline of the Indian National Congress and the emergence of coalition governments. (Spiess and Pehl, 2004) Notably, New Zealand also saw rising defections after 1996 with the introduction of the Mixed Member Proportional (MMP) electoral system and emergence of smaller parties but no government – some were minority coalitions – had collapsed. Government stability in New Zealand was achieved through Confidence and Supply Agreements between government and opposition parties while its AHL was introduced to ensure proportionality and preserve a fragmented parliament. It is also important to note that a government’s survival is not guaranteed by a strong majority. The Warisan-led Sabah State Government held a two-third majority before its collapse. Likewise, the PH federal government was only 10 seats short from a two-third majority when it collapsed. On the other hand, the PN federal government has thus far survived multiple challenges despite having a wafer-thin majority of two.

1.3.3 Objectives and Goals

Having examined the arguments for and against lawmakers’ freedom to defect, we can now examine two objectives that are intended by proponents of anti-hopping remedies but not always explicitly spelled out in separation. The first and procedural objective is to restore voters’ control on electoral mandate given to representatives, so that change in the latter’s party affiliation must be consented by voters or risks being punished with seat vacancy. The second and substantive objective is to preserve the balance of power emerging on the election night, so that party labels are stable and predictable until the next election is called. This objective can be problematised by two potential developments: first, parties may split and merge; second, when no party wins a simple majority and government is formed through pre- or post-election coalition, coalition may be realigned. We need to balance both objectives in designing effective and meaningful remedies, which may have to come in a package. A single focus on voters’ consent over lawmakers’ party affiliation change may result in lawmakers constantly changing parties yet winning by-elections or surviving recall elections, if they can command voters’ loyalty through clientelism. On the other hand, preserving election-night balance of power at all cost may prevent parties to undergo necessary split or

11 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

merger to be more effective election and policy machines. Considering the complexity in remedying party hopping, we propose these four goals in descending order, − Effective legislative oversight; − Meaningfully-differentiated parties; − Stable governments; and − Accountable representatives. The procedural objective is now the lowest goal of ensuring accountability of elected representatives while the substantive objective in preserving election-night balance of power is translated into the next goal of stable governments. We hold neither of these as an end in themselves but rather just a mean to achieve two higher goals in having multiparty competition. The next goal is meaningfully differentiated parties, so that voters can choose between different policy packages. The ultimate goal, to which having parties offering different policies is a mean, is effective legislative oversight on the Executive, preventing the emergence of elected dictatorship in between elections.

1.4 Remedies

We will now look at the menu of remedies, drawn from comparative experiences and local conditions, before studying two of them, Anti-Hopping Law (AHL) and Recall Election Law (REL), with comparative details in Chapters 2 and 3. Law in both AHL and REL is used generically to include both election-related laws and constitutional provisions. (Tagal, 2020: 8)

1.4.1 Anti-Hopping Law (AHL)

AHL is a purpose-built tool to restore voters’ control on their mandate by vacating the party hoppers’ seats and potentially to restore the balance of power. The substantive goal of restoring the balance of power is guaranteed under CLPR as the vacancies will be filled by the next eligible candidates from the same party list. It is however not guaranteed under FPTP and other majoritarian systems in which vacancies will be filled in by-elections and the party-hopping incumbents may be reelected. A survey by Nikolenyi (2016: 99) lists 40 countries – including 25 in the Commonwealth - that had some forms of AHL. The list excludes New Zealand which has readopted an AHL in 2018 and Taiwan which has an AHL for its 30%party-list MPs. Spiess and Pehl (2004: 217) argue that party defection should in fact be analysed from the perspective of electoral system, as constituency-based plurality system or FPTP and list-based proportional representation (PR) have different principles in representation, decision and accountability. (Table 1.2) Drawing from two ‘nascent democracies’1 with AHL and acknowledging the country-specific nuances like communal cleavage, they argue that AHL is more in line with a List-PR system as in South Africa than a FPTP system as in India.

1 India had its first election in 1951-2, just two years later than post-war Germany.

12 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Table 1.2 The Contradicting Principles of Ideal Electoral Systems in Parliamentary Democracies

Plurality System Proportional (Constituency-based) Representation (List-based) Principle of Majority formation Reflection of electorate Representation Rule of Decision Winner-takes-it-all Vote share decisive Norm of Free mandate Imperative Mandate Accountability

Source: Spiess and Pehl (2004: Table 5)

Nikolenyi’s list of 40 countries contains 16 using FPTP and/or Two-Round Systems (TRS), 14 using Party List Proportional Representation (List-PR), nine with Mixed system and one with Alternative Vote (AV). A more useful classification would be looking at particularly the object of ballot, whether the mandate is given to individuals or party (Blais, 1988). This would entail separating Closed-List Proportional Representation (CLPR) from Open-List Proportional Representation (OLPR) and likewise Mixed Member Majoritarian (MMM) from Mixed Member Proportional (MMP). AHL makes the most sense for systems with party-based mandate, whether it is CLPR or the majoritarian Party Block Vote (PBV) - known as Group Representation Constituency (GRC) in Singapore – and the least sense for majoritarian systems with personal mandate such as FPTP. (Table 1.3)

Table 1.3 Electoral System by Recipients of Mandate

Proportional Recipients of Majoritarian Family Representation Others Mandate (PR) Family

Personal First-Past-The-Post Single Single Non- Mandate (FPTP) Alternative Transferable Vote Transferable Vote Vote (AV) Two- (STV) (SNTV) Round System Limited Vote (LV) (TRS) Block Vote (BV)

Party Mandate Party Block Vote Closed-List (PBV) Proportional Representation (CLPR)

Combination of Open-List Mixed Member Personal and Proportional Majoritarian Party Mandate Representation (MMM) (OLPR) Mixed Member Proportional (MMP)

To understand how electoral system affects the operation of AHL, we will study in Chapter 2 four countries in four different electoral systems: India (FPTP), South Africa (CLPR), New Zealand (MMP) and Taiwan (MMM).

13 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

1.4.2 Recall Election Law (REL)

Unlike the purpose-built AHL, recall election is a general tool for voters to terminate early their mandate for elected representatives. Vacancies caused by successful recalls will be filled in through by-elections. (Twomay, 2011; Ellis, 2005) The grounds to recall representatives vary by countries. While party-hopping may not be specifically mentioned as a ground for most, it can certainly be so. In UK, a Recall of MPs (Change of Party Affiliation) Bill 2019-21 has just been tabled for first reading in the House of Commons on 2 September 2020 and is scheduled for second reading on 29 January 2021. There are also RELs that allow voters to recall the entire legislature and force early elections, as in Switzerland (Canton), Germany (in six Landers), Lichtenstein, Japan (local government assemblies) (Judge, 2012: 738) but they fall outside our scope. If party-hopping or coalition-changing lawmakers are successfully recalled, then voters have the opportunity to restore the balance of power in the legislature by voting for candidates from the incumbents’ original parties in the by-elections. This may remove the incentives for rival parties to entice defections against voters’ will because their legislative gains would be undone by recall elections and by-elections. While a by-election under AHL can be triggered by a defection alone, a recall election and the combined or subsequent by-election under a Recall Election Law (REL) has to be triggered by voters’ response to a defection. This means only party-hopping lawmakers will be punished only if they do so against voters’ wishes. As RELs can vary substantively in grounds for recall and organising of by-election, we will study different RELs in Taiwan, California and the United Kingdom in Chapter 3.

1.4.3 Electoral Mandate for Parties

Effective implementation of AHL is facilitated by having a direct mandate for parties through CLPR. This was in fact proposed as a remedy to party-hopping by an Indian minister as early as 1974. (Spiess and Pehl, 2004: 205) Without the personal mandate in FPTP, the grey area for elected representatives to put their conscience or their constituency over their party simply disappears. While CLPR produces stronger incentives for parties to differentiate themselves, it is however possible in plural societies for such differentiation to take the form of identity instead of ideology or political programmes. This may produce small but coherent parties based on communal identity or personality cult which turns parliament into a site of cartelistic negotiation instead of meaningful deliberation. Mixing FPTP and CLPR may capture the best of both worlds under these two conditions: first, if the FPTP lawmakers are allowed to switch party but are subject to recalls; and, second, the portion of CLPR seats is large enough to reduce the prospect of government change by a few defections.

1.4.4 Confidence and Supply Agreement (CSA)

Designed to protect governments without a strong majority from defeats on confidence and budget votes, Confidence and Supply Agreement (CSA) both diminishes blackmail power of party rebels and forces the government to make

14 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

compromises with opposition, resulting in government stability. This has been a feature of New Zealand politics since 1996 when MMP was introduced (McGuinness, W., 2020).

1.4.5 Empowerment of Opposition Lawmakers and Government Backbenchers

By and large, party-hopping incentivised by benefits of being king-makers or government’s new cheerleaders is due to the strong hierarchy between three classes of lawmakers in term of power, perks and prospects: ministers/executive councillors, government backbenchers and opposition lawmakers. In a winner-takes-all environment, one can be seen as a loser for simply being in opposition. To deter party-hopping, rules of the game in “status upgrade” for lawmakers – from opposition to government, from government backbenchers to ministers/executive councillors – need to be rewritten. First, the differentials between winners (government/ministers) and losers (opposition/government backbenchers) in terms of power and resources need to be narrowed. These include − assess to Constituency Development Fund (CDF) and other state funds (carrot); and − risk to prosecution and harassment by law-enforcement agencies (stick). Second, the quantity of major carrots available for party-hoppers including ministerial posts and remunerative political appointment – collectively known as “expanded payroll vote” (Zolgekar, 2019; Wong, 2020a) – should be capped. Thirdly, parliament/legislature must function optimally to encourage programmatic competition based on policy and legislative oversight, so that working hard in their current positions can help − opposition to win the next election and be the next government; and − government backbenchers to join the frontbench; suchthat they have no need to cross the floor for an immediate “status upgrade”. levelling the playing field in particularistic competition and encouraging programmatic competition, hence improving the prospect for opposition lawmakers and government backbenchers to shine on their job.

15 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

2 Anti-Hopping Law (AHL) – Comparative Experiences

We shall examine four sets of AHLs covering different types of lawmakers under four types of electoral system: 1. India covering all its federal and state lawmakers, both elected under FPTP and nominated by President; How To2. Deter South Party AfricaHopping covering in Malaysia? all An its Exploration lawmakers, of Remedies under Closed-List Proportional Representation How To Deter Party Hopping in Malaysia? An Exploration of Remedies (CLPR) at the national and provincial levels and Mixed Member Proportional (MMP) 2 Anti-Hoppingatthe local level; Law (AHL) – Comparative Experiences 2 Anti-Hopping Law (AHL) – Comparative Experiences We3. shallNew examineZealand coveringfour sets bothof AHLs its FPTPcovering and different CLPR parliamentarians types of lawmakers; and under four types of electoralWe4. shallTaiwan examinesystem: covering four setsonly of its AHLs CLPR covering national different parliamentarians types of lawmakers under under Mixed four Membertypes of electoral system: 1. IndiaMajoritarian covering (MMM) all its. federal and state lawmakers, both elected under FPTP and 1. nominatedIndia covering by President; all its federal and state lawmakers, both elected under FPTP and nominated by President; 2. South Africa covering all its lawmakers, under Closed-List Proportional Representation Defection2. (CLPR)South may Africa at be the coveringdefined national widelyall and its provincialorlawmakers, narrowly levelsto under cover and Closed-Listbeyond Mixed voluntary Member Proportional exit Proportional and includeRepresentation (MMP)expulsion (CLPR) at the national and provincial levels and Mixed Member Proportional (MMP) andatthe voting local behaviour level; in the House, and whether to provide exemption for merge or split. (For a atthe local level; useful3. New table Zealand of the covering 25 Commonwealth both its FPTP countries and CLPR in Nikolenyi, parliamentarians 2016; see; and Tagal, 2020: 12) The 3. New Zealand covering both its FPTP and CLPR parliamentarians; and power4. Taiwan to determine covering occurrence only its of CLPR defection national may lie parliamentarians with speaker, party under leader Mixedor parliamentary Member 4. MajoritarianTaiwan covering (MMM) only. its CLPR national parliamentarians under Mixed Member colleaguesMajoritarian of the (MMM) same party,. and their decisions may or may not be adjudicated by court.

Defection may be defined widely or narrowly to cover beyond voluntary exit and include expulsion andDefection voting may behaviour be defined in the widely House, or andnarrowly whether to cover to provide beyond exemption voluntary forexit mergeand include or split. expulsion (For a usefuland2.1 voting India table behaviour of the 25 in Commonwealth the House, and countrieswhether to in provide Nikolenyi, exemption 2016; see for Tagal,merge 2020:or split. 12) (For The a poweruseful totable determine of the 25occurrence Commonwealth of defection countries may liein withNikolenyi, speaker, 2016; party see leader Tagal, or 2020:parliamentary 12) The colleaguespowerScope to determine of the same occurrence party, and of theirdefection decisions may liemay with or speaker,may not partybe adjudicated leader or parliamentaryby court. colleagues of the same party, and their decisions may or may not be adjudicated by court. The Tenth Schedule to the Constitution of India provides for disqualification of lawmakers 2.1 India 2.1 Indiaat both the federal and state levels, in the Council of States (Rayja Sabha), House of the ScopePeople (Lok Sabha), State Legislative Assembly and State Legislative Council. It does not Scopeapply to the Chairman of the Council of States, who is the Vice President, elected by an The Tenth Schedule to the Constitution of India provides for disqualification of lawmakers atTheelectoral both Tenth the college Schedule federal formed and to the state by Constitution both levels, Houses in theof ofIndia Council the providesfederal of States Parliament. for disqualification (Rayja Sabha), Houseof lawmakers of the atPeople both (theLok federal Sabha ),and State state Legislative levels, in Assembly the Council and of State States Legislative (Rayja Sabha Council.), House It does of notthe WhileapplyPeople to most(Lok the Sabha Chairmanlegislators), State of are theLegislative Councilelected, Assemblyof some States, are andwho nominated State is the Legislative Vice by President, the Council. President: elected It does by not an electoralapply to thecollege Chairman formed of by the both Council Houses of States,of the federal who is Parliament.the Vice President, elected by an electoral−− 12 out college of 250 formed Members by both of Houses Rayja Sabhaof the federalfrom amongst Parliament. persons having special Whileknowledge most legislators or practical are experience elected, somein respect are nominatedof such matters by the as literature,President: science, Whileart most and social legislators service; are elected, some are nominated by the President: −− 12 out of 250 Members of Rayja Sabha from amongst persons having special −− knowledge12Two out out of of 250orthe practical maximumMembers experience 552of Rayja Members in Sabha respect of Lokfrom of Sabha such amongst mattersto represent persons as literature, the having Anglo-Indian science,special −− artknowledge and social or service;practical experience in respect of such matters as literature, science, artcommunity. and social service; −− Two out of the maximum 552 Members of Lok Sabha to represent the Anglo-Indian −− community.Two out of the maximum 552 Members of Lok Sabha to represent the Anglo-Indian community. Definition of Disqualification Definition of Disqualification DefinitionSub-paragraph of Disqualification 2(1), (2) and (3) define defection as Sub-paragraph 2(1), (2) and (3) define defection as − voluntary giving up of party membership; −Sub-paragraph voluntary giving 2(1), (2) up and of party (3) define membership; defection as − −− insubordinationvoluntary giving toup party’s of party instruction membership; in voting or abstention in the House, without −− priorinsubordination permission to or party’s retroactive instruction condonation in voting within or abstention 15 days in from the House,such voting without or abstention;prior permission and or retroactive condonation within 15 days from such voting or abstention; and −− joining another party if the lawmaker was originally an independent. −− joining another party if the lawmaker was originally an independent.

Nominated members who are independent at the time of their nomination have a six-month windowNominated to joinmembers any political who are party. independent After the at theexpiry time of of such their period,nomination those have who a six-monthexercised window to join any political party. After the expiry of such period, those who exercised suchwindow an optionto join will any be political disqualified party. if Afterthey subsequentlythe expiry of voluntarilysuch period, give those up their who membership exercised orsuch defy an their option party’s will be instruction disqualified in legislative if they subsequently voting. Meanwhile, voluntarily those give whoup their do notmembership exercise orsuch defy an their option party’s will be instruction disqualified in legislative if they subsequently voting. Meanwhile, voluntarily those give whoup their do notmembership exercise or defy their party’s instruction in legislative voting. Meanwhile, those who do not exercise

16 How To Deter Party Hopping in Malaysia? An Exploration of Remedies such an option will be disqualified if they join a party after that. [Sub-paragraphs 2(1) and (3)]

Considerations for Merger and/or Split of Party

If two-third or more of lawmakers of a party in the House agree to a merger with another party, whether to form a new party or to be submerged into the other party, both lawmakers who become members of the new party and lawmakers who disagree with the merger and opt to function as a separate group will not be disqualified. [Paragraph 4]

Originally, Paragraph 3 also exempted splintering lawmakers from disqualification over voluntary giving up of party membership [Sub-paragraph 2(1)] or insubordination to party instructions on legislative voting [Sub-paragraph 2(3)]. The condition is that such a group “consists of not less than one-third” of lawmakers of the original party in the legislature. As this provided a convenient exit for en bloc defections, Paragraph 3 was repealed by the 91st Constitutional Amendment in 2003.

Decision and Procedure

The decision on whether or not a lawmaker is subject to disqualification is to be decided by the Chairman or Speaker of the House. If the Chairman or Speaker is subject to disqualification, then the House may elect another member to decide on the matter. Their decisions are final. [Paragraph 6]

However, Paragraph 7 which barred jurisdiction of any court on disqualification of lawmakers had been declared invalid in Kihoto Hollohan vs Zachillhu And Others in 1992.

Applications and Debates

Introduced in 1985, India’s AHL was a response to the prevalence of lawmakers’ defection which follows the Indian National Congress’s (INC) loss of dominance at the state level since 1967. From 1967 to 1971, almost 2,000 cases of defection were recorded for a total of some 4,000 federal and state lawmakers. (Spiess and Pehl, 2004: 200, 202) In the most dramatic case, a Haryana state lawmakers Gaya Lal changed his party thrice within the same day in 1967, resulting in the popular phrase Aaya Ram Gaya Ram (Ram has come, Ram has gone). (Relhan, 2017)

In December 2017, two members of Rajya Sabha (Senators) from the Janata Dal (United) party, JD(U), were disqualified by the Chairman, for having ‘voluntarily given up their membership’ with anti-party activities such as repeatedly criticizing their party on public forums and attending rallies of rival parties in Bihar. The legal challenge against the disqualification is still ongoing. (Relhan, 2017)

In October 2018, the Madras High Court upheld the decision of the Speaker of the Tamil Nadu Assembly to disqualify 18 state legislators from AIADMK for meeting with the State Governor and expressing loss of confidence in the AIADMK state government led by Chief Minister K Palaniswami in 2017. Before defection, AIADMK had a majority of 134 in the house of 232 members excluding two vacant seats due to death. The defection reduced the government’s strength to 116, exactly just half. The disqualification restored its majority by temporary bringing down the House’s total to 214. (Economic Times, 2018) In the by- elections held in May 2019, AIADMK won eight out of the 18 seats and kept its fragile majority.

17 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Clearly, the Indian AHL has successfully made governments more stable. Although Paragraph 2 of the Tenth Schedule does not include expulsion by party, which is involuntary in nature, but the Supreme Court has interpreted that giving up of membership can be inferred by lawmakers’ conducts outside the legislature in expressing opposition to their party or support for another party. (Relhan, 2017)

The price for such political stability is the autonomy of lawmakers to vote in line with their conscience, judgement and interests of his electorate. This restriction impedes the legislative oversight on the Executive and may privilege the interest of party leaders over that of constituents. Some experts have suggested limiting the AHL’s coverage on legislative voting to only confidence and supply votes (Relhan, 2017). Spiess and Pehl (2004: 199, 205) argued that India’s original AHL had not been effective in preventing party jumping by way of the legally established en bloc defection but its reinforcement (with the removal of Paragraph 3 and limiting the number of ministers to 15% of the Lower House members) would move India’s political system away from one with “independently and critically thinking” MPs despite retaining the FPTP system.

2.2 South Africa

Scope

Sections 47(3)(c) and 106(3)(c) of the Constitution of the Republic of South Africa (1996 Constitution)) cover respectively Members of Parliament (National Assembly) and Members of Provincial Legislatures.

Section 27 of the Local Government Municipal Structures Act 1998 (LGMSA1998) governs municipal councillors, elected under a Mixed Member Proportional (MMP) system, with 60% from FPTP wards and 40% under Closed-List Proportional Representation (CLPR).

Definition of Disqualification

For both MPs and Members of Provincial Legislatures, the disqualification criterion is “[ceasing] to be a member of the party that nominated that person as a member of the [house].”

A party-list councillor vacates office if he or she “ceases to be a member of the relevant party” [Section 27(c), LGMSA1998] and likewise for a ward councillor who “ceases to be a member” of the party whose mark/symbol s/he used in election, or who “becomes a member of a party” whose mark/symbol s/he did not use in election. [Section 27(f)]

Procedure

Vacancies in wards will be filled in by-elections unless the full council election would be held in 6 months. [Section 25, LGMSA1998] Vacancies for party list seats will be filled by the next eligible candidates on the same list. [For councillors: Part 4, Schedule 1 to MSA1998; For Members of Parliament (National Assembly) and Members of Provincial Legislatures: Item 23, Schedule 1A to the Electoral Act, 1998]

Applications and Debates

South Africa’s AHL governing federal and provincial lawmakers was first introduced in the Interim Constitution of 1993 (Sections 43 and 133), later added with Schedule 2, Clause

18 How To Deter Party Hopping in Malaysia? An Exploration of Remedies How To Deter Party Hopping in Malaysia? An Exploration of Remedies

23A in 1996. This was retained in the Constitution of the Republic of South Africa 1996 (Schedule 6, Annexure A, Item 13). The combination of a CLPR system and AHL was to protect proportionality and small parties in a multiparty democracy. It also allowed the ruling African National Congress’ (ANC) leadership to have a tight grip of their representatives in the legislatures, first deciding who to be included on the candidate list and then ensuring the elected members toe the party line. (Spiess and Pehl, 2004: 209-210)

The relaxing of the AHL to allow defection within specified window periods (15 days in the second and fourth year after an election) at the national, provincial and local levels was passed with the combined strength of ANC and the opposition Democratic Alliance (DA), a new entity produced by the merger of Democratic Party (DP) and the successor of the apartheid ruling party, New National Party (NNP).

As a result of challenge by another opposition party, United Democratic Movement (UDM) in October 2002, the Constitutional Court affirmed the constitutionality of the “floor crossing legislation” but allowed it only for the local level. The Parliament further amended the Constitution to enable its application at both the national and provincial levels. The conditions imposed were that, first, 10% of a party’s lawmakers must cross the floor en bloc; and, second, a lawmaker could only cross the floor once in a term. (Spiess and Pehl, 2004: 209-211)

The relaxing of AHL was introduced by ANC to subsequently break up the alliance of DA and co-opt NNP. In 2002, a total of 555 of municipal councilors (7%) crossed the floor, and NNP regained 340 of 612 former NNP councilors in DA. DA was ousted in a total of 19 councils while ANC-led coalitions took power in 21 councils. More importantly, ANC gained a two-third majority in the national parliament and established a majority in the Western Cape Provincial Legislature by 2003. DP/DA also gained at the national level while both NNP and UDM bore the brunt. Overall, this sealed ANC’s dominance in post-Apartheid South Africa.

Naturally, this resulted in alienation and apathy of the part of voters that some one third of voters in the most affected provinces, Western Cape and KwaZulu-Natal, said that they would not vote if the election was held in the following day. (Spiess and Pehl, 2004: 211- 212) A public forum in 2006 concluded that “… floor crossing weakens our emerging democracy, and does not lead to competitive democracy, but rather encourages corruption and should be scraped [sic] with immediate effect….” (cited in Janda, 2009: 18)

Booysen (2006:734) underlined that “the defections prevailed in the context of consolidation and entrenchment of a dominant-party system” as “the chain of defection and alliance events” was reinforced by electoral realignment in the April 2004 national and provincial elections.

By 2007, “floor-crossing had become absurd and delegitimated” and little benefit was left for ANC with courting “a few dubious representatives from other parties”. In 2008, ANC renounced floor-crossing: “There have been unintended consequences of the floor-crossing legislation that serve to undermine our democracy. While some people have crossed the floor for ideological and policy reasons, many have done so for very individualistic reasons, including in search of monetary gain and personal promotion”. In early 2009, the 2002 status quo was restored. (Booysen, 2011: 279-283)

19 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

2.3 New Zealand

Scope

Sections 55A-55E of the Electoral Act govern 1993 all Members of Parliaments except those who are elected as independents. It does not differentiate whether the MPs are elected under FPTP or Closed List Proportional Representation (CLPR) in the Mixed Member Proportional (MMP) system

Definition of Disqualification

The seat of a MP becomes vacant if s/he “ceases to be a parliamentary member of the political party for which the member of Parliament was elected”. [Section 55A(2)]

This has to be conveyed by a written notice to the Speaker by the MP or by the party’s parliamentary leader. [Sections 55A(3) and 55E]

Procedure

For the party’s parliamentary leader to make a notice under Section 55A(3)(b), it must be accompanied with a statement under Section 55D which must state that:

−− the parliamentary leader reasonably believes that the MP “has acted in a way that has distorted, and is likely to continue to distort, the proportionality of political party representation in Parliament as determined at the last general election”; −− the parliamentary leader has delivered to the MP in writing to inform the MP of the leader’s opinion on the MP distorting inter-party proportionality and the reasons, to give the MP 21 working days to reply in writing; and −− after consideration of the conduct of the MP and his/her response (if any), at least two-thirds of the party’s MPs agree to issue the notice under section 55A(3) (b).

Applications and Debates

The current AHL was introduced in 2018 after an early AHL expired by 2005, which was in turn prompted by party defection after New Zealand adopted MMP in 1996. While party defection had happened under FPTP, it became antithetical to the spirit of MMP as it would distort proportionality between party on election-night.

In 1997, a party-list MP Manu Alamein Kopu left her party Alliance to become an independent but there was no way to vacate her seat and allow Alliance to replace her with another candidate on the list. (Geiringer, 2005: 134-139)

In 1999, the first Electoral (Integrity) Amendment Bill was introduced by the Labour and Alliance government but the 10 members of the House’s Judicial and Electoral Committee was evenly split, with all opposition members from National, ACT and Green all opposed to it. (Joseph, 2000: 308-310) The bill was successfully passed in 2002 but with a sunset clause to expire before the subsequent election, in 2005.

In its short life span, the first AHL was tested in two cases, one proven ineffective while the other effective.

20 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Immediately after, the Alliance party was split between its parliamentary leader Jim Anderton and party president Matt McCarten. In April 2002, the party expelled Anderton, a constituency MP and four party-list MPs allied to him. The Speaker however ruled that Anderton would continue to be recognised as Alliance’s parliamentary leader and four other expelled MPs as Alliance members, as what happened outside the House has no bearing on the House. Anderton subsequently even announced setting up a new party to face the next election. (Geddis, 2002; Joseph, 2003: 393-395)

In early 2003, ACT suspended its party-list MP Donna Awatere Huata and refused to record her vote in the House. By doing so, ACT voluntarily disturbed the proportionality, having eight instead of nine votes. However, Awatere Huata had been careful not to oppose ACT’s policies in the House to avoid a ruling that she distorted proportionality. As the matter went to court, the Court of Appeal held that her voting pattern did not prove a distortion of proportionality but this was reversed by the Supreme Court on the ground that fall of ACT seats from nine to eight affected select committee membership, speaking times in the House and party funding allocations. (Joseph, 2006: 153-155)

A new AHL was attempted in 2005 and was eventually successful in 2018 following an agreement between Labour and New Zealand First Party which staunchly advocated for it.

The key argument in New Zealand’s AHL is rested on seat-vote proportionality on election night which binds both FPTP and party-list parliamentarians, and the latter cannot stand in by-election. This resembles South Africa which disqualifies both FPTP and party-list councillors under its MMP system but differ from Taiwan’s AHL which only applies to the party-list parliamentarians under its Mixed Member Majoritarian (MMM) system. This confirms the insight by Spiess and Pehl (2004: 198) that “the nature of the electoral system prevailing in a country determines the way and manner whereby the phenomenon of floor- crossing has to be handled”.

The requirement for a party’s parliamentary leader to demonstrate that an MP has distorted proportionality had made the enforcement of AHL both more democratic and less effective than India where speakers decide on defection based on voting pattern. In both cases, that leads to the fundamental question whether lawmakers can make decision based on their own conscience and judgement as advocated by Edmund Burke.

2.4 Taiwan

Scope

Taiwan has no official AHL. If voters are not happy with any elective officers from President to village head, over change of party affiliation or any other reason, they can initiate a recall. (See Part 3.1) However, recall law does not cover Members of Parliament (The Legislative Yuan) who are elected on Closed-List Proportional Representation (CLPR) in the at-large nationwide constituency (termed “national integrated election and overseas election”).

A part of the Civil Servants Election and Recall Act (CSERA) however functions as the de facto AHL for the 34 Party-List MPs.

21 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Definition of Disqualification

Candidates for party-list elections must be party members. (Article 24) Loss of party membership by a party-list MP will result in vacancy of seat. (Article 73)

Procedure

The Central Election Commission will inform the Legislative Yuan of the party-list MP’s vacancy, which will be filled by the next eligible candidate from the same party. If the party has no eligible candidate, the seat will be left vacated. (Article 73)

Applications and Debates

In 2019, New Power Party (NPP) party-list parliamentarian Kawlo Iyun Pacidal was expelled over misconduct. The parliamentarian sat in the parliamentary committee which scrutinized the Ministry of Economic Affairs but her former assistant was found to have run two non- governmental organizations which received funding from the ministry. Pacidal lost her seat which was duly replaced by a university professor Cheng Hsiu-ling. (Maxon, 2019)

22 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

3. Recall Election Law (REL) – Comparative Experiences

Recall elections vary in passing thresholds but the most fundamental difference lies between two models: one which allows voters to hold elected representatives on various grounds and resembles referendum and initiative as a form of direct democracy and the other that serves a supplementary disciplinary tool that can be invoked on limited legal or institutional grounds only. Operationally, a jurisdiction can choose whether to combine by-election with recall election or to keep them separately. To demonstrate these two differences, three jurisdictions – Taiwan, California and United Kingdom, are studied here. (Table 3.1)

Table 3.1 Fundamental Differences in Recall Mechanisms in Taiwan, California and United Kingdom

Eligibility of Recalled By-election Jurisdiction Initiators Ground Representative in Mode by-election Taiwan Voters Unrestricted Separate Disallowed (1%) California, Voters Unrestricted Combined Disallowed, by default US United Speaker Law-breaking Separate Allowed Kingdom (imprisonment or conviction for allowance fraud) and suspension from the House (>10 working days or 14 days)

3.1 Taiwan

Scope

Taiwan, officially known as Republic of China, allows recall by voters for elected officers, both executive and legislative, at the national, municipal/county and local levels: (a) President and Vice President; (b) Members of Parliament (Legislative Yuan) representing FPTP constituencies; (c) Governors of Municipality / County; (d) Councillors of Municipality / County; (e) Chiefs of Township / Indigenous Districts; (f) Representatives of Township/Indigenoues District Congress; and

(g) Chiefs of Village;

through the Presidential and Vice Presidential Election and Recall Act (PVPERA) and the Civil Servants Election and Recall Act (CSERA), both deriving their power from the Constitution of the Republic of China.

2331 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

MPs elected on Party-List are not subject to recalls but they face a de facto AHL as their seats would be vacated when they quit or are expelled from their party. [Articles 71 and 73 of CSERA]

Grounds

The laws do not restrict the grounds to initiate a recall petition but for members of parliaments and all local elected officers, the statement for recall is limited to 5,000 words. [Article 76 of CSERA]

Restriction in Time

An elected officer cannot be recalled before assuming office for a year. [Article 70 of PVPERA and Article 75 of CSERA] If a recall has been vetoed, no new recall may be possible for the remaining of the term. [Article 78 of PVPERA and Article 92 of CSERA]

Process and Thresholds

Recall of president and vice president is nearly impossible to initiate and hard to pass. The recall proposal first needs to be passed by a two-third majority of the Parliament (Legislative Yuan). [Article 70 of PVPERA] If a recall election is successfully initiated, recall can be effective if it passes two concurrent thresholds: a turnout rate of more than 50% and more than 50% consenting votes amongst all valid votes. [Article 76 of PVPERA] This effectively means as few as 25% of registered electorate and one more person can recall a President or Vice President if even less voters oppose the recall.

Both the initiation and passing thresholds are more demanding than what meets the eyes. As the president (with vice president as running mate) and the Parliament are elected simultaneously, it is unlikely for a party to win the presidency but only less than one-third of parliamentary seats, or for the president to be later abandoned by his/her party legislators in droves. Even if a recall election is ever held, it can be defeated if the turnout is kept below 50% and vote suppression is a common tactic adopted by officers facing recall.

Recalls for parliamentarians and other elected officers have to start with a proposal submitted by 1% of registered voters as proposers, and further endorsed by another 10% of voters (called “joint signers”). [Articles 76 and 81 of CSERA] The Election Commission (EC) has 25 days to study the proposal and verify the authenticity of the proposers’ signatures before accepting or rejecting it. The proposers have 10 days to supplement new signatures to replace any names rejected. [Article 79, CSERA]

Once the proposal is accepted, the proposers are given a certain period of time to collect 10% of endorsing signatures: 60 days for MPs, governors of municipality or county; 40 days for county councillors and chiefs of township or indigenous district; and 20 days for representatives of township/indigenous district congress or village chief. [Articles 80-81] The EC has correspondingly 40 days, 20 days and 15 days to verify the joint signers’ signatures for the above categories. Again, the proposers have 10 days to supplement new signatures to replace any rejected ones. [Article 83] The officers subject to recall may file within 10 days a defence in 10,000 words for voters to consider. [Article 84]

The voting for recall shall be held within 20-60 days from the establishment of recall proposal. [Article 87] and the proposal would be carried upon meeting two concurrent thresholds: the consenting votes exceed the dissenting votes and reach 25% of the total electorate [Article 90].

24 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Prohibition for Re-contestation

A successful recall will lead to a by-election. The recalled incumbent cannot stand in the by-election and future elections for the same position for the next four years. (Article 78, PVPERA; Article 92, CSERA)

Applications and Debates

The most prominent case was the successful recall of Kaohsiung mayor Han Kuo-yu on 6 June 2020. Han from opposition party Kuomintang (KMT) won unexpectedly the ruling Democratic Progressive Party’s (DPP) stronghold on 24 November 2019. His presidential bid, announced on 5 June 2019, provided a good reason for DPP supporters to initiate a recall proposal, submitted on 25 December 2019. Three months after Han’s defeat in the presidential election on 11 January 2020, the recall proposal passed its qualifying threshold. Han’s supporters shied away from the recall election on 6 June 2020, but the turnout still registered a 42.14% turnout rate and 97.4% of voters consented for his recall. (Horton and Chang, 2020)

Some had earlier expressed consent that the 25% threshold was too low that an incumbent may be ousted by a minority of staunch opposition voters if majority of voters simply could not be bothered to vote. In Han’s case, the 939,090 consenting votes for his recall – 40.83% of electorate –not only exceeded the 25% threshold, but also surpassed the 892,545 votes Han won in 2018.

Earlier in December 2017, a recall against opposition New Power Party (NPP) parliamentarian Huang Kuo-chang was defeated when only 48,370 voters (18.93% of electorate) voted for his recall, failing to meet the 25% threshold or 63,988 votes. Huang was supported by 21,762 (8.52%) voters in the recall initiated by opponents of gay marriage linked to KMT. (Hioe, 2017)

Currently, two municipal councillors – one in Taoyuan from the ruling Democratic Progressive Party (DPP) and the other in Kaohsiung formerly from NPP– face recall elections on 16 January and 6 February respectively. (Huang et al., 2020; Strong, 2020) The retaliatory recall proposals initiated by Han’s supporters were officially accepted in June and September 2020 and met the 10% threshold of joint signatures in November and December.

As municipal and county councillors in Taiwan are elected from multimember constituencies on Single Non-Transferable Vote (SNTV), majority of winners are elected with much lower vote shares than 25%. In other words, recalling some councillors may need more votes than electing them. On the other hand, without having to spread out their vote base as they do in an SNTV election, parties can focus their machinery on recall. Taking both into account, recall elections may become a partisan battlefield where “calling out the votes” is the key.

3.2 California, United States

Scope

Section 11000 of California’s Elections Code (ELEC) provides for recall of state and local officers, but not federal officers.

25 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

State elective officers include Governor, Lieutenant Governor, Secretary of State, State Senators and Members of Assembly. A local officer is defined as “an elective officer of a city, county, school district, community college district, or special district, or a judge of a trial court.” (Section 11004)

Grounds

Section 14(a) of California Constitution (CC) stipulates that “sufficiency of reason [for recall] is not reviewable”, while Section 11020(b) of ELEC limits the length for a statement of reason for a proposed recall to 200 words.

Restriction in Time

Stipulated by Section 18 of CC and Section 11007 of ELEC, recall cannot be initiated against an officer in the following three circumstances:

(a) The officer has not held office during the current term for more than 90 days; (b) A recall election has been determined in the officer’s favor within the last six months; and (c) The officer’s term ends within six months or less.

Process and Thresholds

Recall of a state officer is initiated once a petition alleging reason for recall is delivered to the Secretary of State but the required signatures must be reached within 160 days. (Section 14(a), CC)

The common threshold for recalling state officers is “12% of the last vote for the office, with signatures from each of 5 counties equal in number to 1% of the last vote for the office in county.” However, for state senators, members of the Assembly, members of the Board of Equalization, and judges of courts of appeal and trial courts, a higher threshold of 20 percent is applied. (Section 14(b), CC)

For recall of local officers, Sections 11220 and 11221 vary the signature threshold and deadline by the size of jurisdiction:

(a) 30% in jurisdictions with 0 - 1,000 registered voters, within 40 days; (b) 25% in jurisdictions with 1,000 - 10,000 registered voters, within 60 days (<5000) and 90 days (<10000); (c) 20% in jurisdictions with 10,000 - 50,000 registered voters. within 120 days; (d) 15% in jurisdictions with 50,000 - 100,000 registered voters, within 160 days); and

(e) 10% in jurisdictions with 100,000 or more registered voters, within 160 days.

The threshold for passing a recall petition is simply a majority of the valid votes. (Sections 11383 and 11384)

26 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

There is no by-election following a successful recall as the recall ballot carries the list of replacement candidates. The candidate receiving the highest number of votes for the office shall be declared elected for the unexpired term of the recalled officer. (Sections 11385) Nomination of replacement candidates needs to be filed no less than 59 days before election for state officers and 75 days for local officers. The names of candidates should be placed on the ballot – for all state officers and some local officers – by the 55th and 71st day before election. (Sections 11381)

Prohibition for Re-contestation

The incumbents subjected to recall are not allowed to place themselves as a replacement candidate for the same office or the same governing board.

Applications and Debates

Recall was introduced in California in 1911 and California has the lowest signature requirements of all states but only in 2003 the first governor was successfully recalled. (Twomay, 2011: Footnote 34) Before Democratic Governor Gray Davis’ recall in 2003, 31 abortive recall attempts were made on governors including one on Davis. (Garrett, 2004: 239)

Davis won 3,533,490 votes (47.26%) to defeat his Republican opponent Bill Simon who garnered 3,169,801 (42.40%) in the 2002 gubernatorial election on 5 November. Exactly three months later on 5 February, Davis faced a recall initiative for alleged gross management of the state’s finance.

In the recall held on 7 October 2003, 4,976,274 voters (55.39%) consented to his recall while another 4,007,783 (44.61%) dissented. Of a long list of 135 replacement candidates, Republican movie star billionaire Arnold Schwarzenegger emerged victorious with 4,206,284 votes (48.6%), defeating Democratic Lieutenant Governor Cruz Bustamante who garnered 2,724,874 votes (31.5%) and another Republican candidate Tom McClintock who received 1,161,287 votes (13.4%). Schwarzenegger’s victory was much attributed to his celebrity’s appeal, his wealth and his “outsider” image.

This successful recall had raised at least three issues in California’s recall mechanisms. First, as the 12% qualifying threshold for recall petitions in California is based on “the last vote for the office”, the low turnout in the mundane 2002 gubernatorial election produced a low threshold of 897,158 votes, making it easier for the recall petition to get to the polling stage. While raising the threshold might have frustrated the signature campaign against Davis which was assisted with big money from Schwarzenegger and others, it might also make it even harder for campaigns with less funds. Second, as entering candidate list required only 65 signatures and USD 3,500 or 10,0000 signatures, 135 candidates – most frivolous – appeared on the ballot and might have caused some confusion for less educated voters. Third, the simultaneity of the recall and by-election might have caused some problem in messaging for the incumbent’s party in urging voters to reject the recall petition and to support a co-partisan replacement candidate. (Garrett, 2004: 240-254; 261)

27 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

3.3 United Kingdom

Scope

The Recall of MPs Act 2015 (RMA) only covers Members of the House of Commons.

Grounds

Unlike in Taiwan, California and most jurisdictions with recall elections, the UK restricts the use of recall mechanism on only breaking of laws or rules, as a supplement to the Representation of the People Act 1981 which automatically disqualifies any MP who is jailed for more than a year.

Recall is currently permitted only under three conditions:

(f) “The MP has, after becoming an MP, been convicted in the United Kingdom of an offence and sentenced or ordered to be imprisoned or detained, and the appeal period expires without the conviction, sentence or order having being overturned on appeal.” [Section 1(3)] (g) Suspension from the House of Commons, following a report from the Committee of Standards, for at least 10 sitting days or at least 14 days, and when the suspension starts does not matter. [Section 1 (4), (5) and (6)] (h) “The MP has, after becoming an MP, been convicted of an offence under section 10 of the Parliamentary Standards Act 2009 (offence of providing false or misleading information for allowance claims) and the appeal period expires without the conviction having being overturned on appeal.” [Section 1(9)]

For the first and third recall conditions, the offence may be committed before the MP becomes an MP and before Section 1 came into force, but the conviction must happen after Section 1 came into force. Sentence in Section 1(3) excludes remand or detention for mental health. [Section 2]

Expanding the grounds to cover for change of party affiliation, a Recall of MPs (Change of Party Affiliation) Bill 2019-21 - is scheduled for its second reading in January 2021.

Restriction in Time

Recall cannot be triggered within 6 months before the polling day for the next parliamentary general election. [Section 5(2)] If the next election is brought forward after the recall process started, it may be terminated early. [Section 13(2)]

Process and Thresholds

For the first and third conditions, the speaker needs to be informed by the relevant court of the sentence and conviction, and of the status of appeal. [Section 4]

The Speaker will give a notice to the petition officer for the MP’s constituency, who is the Returning Officer or in Northern Ireland, Chief Electoral Officer. [Sections 5 and 6]

The Petition Officer must designate a maximum of 10 places for voters to sign the recall petition, for six weeks starting from the 10 working day - in normal circumstances - upon

28 How To Deter Party Hopping in Malaysia? An Exploration of Remedies receipt of the Speaker’s notice. The Petition Officer must also send a notice of petition to registered voters. [Sections 7 and 8]

An eligible voter may sign the recall petition in person, by post or by proxy. [Section 11] If at least 10% of the eligible registered voters sign the petition, the MP’s seat will be vacated and to be filled by a by-election. [Sections 14 and 15]

Prohibition for Re-contestation and New Recall

If the recall is successful, the recalled MP can contest in the by-election. [Section 9(4)]

Applications and Debates

Three petitions had been filed since RMA call into force in March 2016 but only the latter two recalls were successful. Interestingly, each petition was filed under one of the three conditions: imprisonment sentence, suspension from House of Common and conviction for false claims.

In the first deployment of the Act in July 2018, Ian Paisley Jr, Democratic Unionist Party (DUP) MP for North Antrim, Northern Ireland, was suspended from the House of Common for 30 sitting days for undeclared holidays in Sri Lanka and ‘paid advocacy’ for Sri Lanka government over human rights abuse. The son of DUP founder escaped recall as the signatures in the DUP stronghold fell just marginally below 10%. (Tonge, 2019:2)

In the second petition, Fiona Onasanya, Labour MP for Peterborough, East of England, was convicted of and jailed for three months for perverting the course of justice for lying over a speed driving offence. She was expelled by her party before the recall was passed by 28% of signatures. Onasanya did not recontest as an independent and her seat was retained by Labour in the by-election. (Tonge, 2019:3)

Carried by 19% of signatures, the third petition successfully recalled Chris Davies, Conservative MP for Brecon and Radnorshire, Wales, who was convicted of submitting and attempting to submit false invoices totaling GBP 700. Davies was nominated by Conservatives but lost to the Liberal Democratic candidate in the by-election. (Tonge, 2019:3)

The numbers of petition stations varied vastly and had raised some concerns why the petition officer did not set up the maximum number of petition stations in North Antrim and Breacon and Radnorshire, the largest constituency in landmass in England and Wales. (Table 3.2)

29 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Table 3.2 Recall of MPs Act petitions by constituency in 2018-2019

Average % % of Petition Petition Petition electors electors station station By- Constituency Electors Stations signing per per per sq election petition signing elector km station

North Antrim 75,428 3 9.4 3.1 1: 1:462 No 25,142 Peterborough 69,673 10 27.6 2.8 1:6,967 1:20 Yes

Brecon & 53,030 6 18.9 3.3 1:8,838 1:501 Yes Radnorshire Source: Tonge (2019, Table 1)

The larger debate over the British recall mechanism, beginning with the white paper introduced in 2011, concerns its scope and justification. Some would argue that parliamentary disciplinary mechanism may be the more effective and cost-efficient way if expelling parliamentarians over misconduct is the purpose. Others believe that recall should be initiated by citizens with less or no restriction on grounds. (Judge, 2012; Wright, 2015)

30 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

4 Issues with Anti-Hopping Remedies in Malaysia

In this section, we first examine the viability of two main anti-hopping remedies: anti-hopping law (AHL) and Recall Election Law (REL), both of which aim to restore voters’ control of their mandates and restore the balance of power if voters disagree with lawmakers’ change of party affiliation. To examine how both tools might work in reality, we look at the 2020 Sabah State Election to see if voters care to punish party-hoppers. Caused by en bloc defection of 13 lawmakers to bring down the Warisan-led State Government, the state election was akin to “collective by- elections” caused by an AHL or an anti-hopping REL minus the recall process.

As most party-hopping incumbents were reelected in Sabah, we explore other remedies that can empower lawmakers and opposition parties to make them less susceptible to defection: electoral mandate for parties, Confidence and Supply Agreement (CSA) and empowerment of opposition lawmakers and government backbenchers.

4.1 Anti-Hopping Law (AHL)

4.1.1 Ban on Recontesting after Resignation

At the federal level, Malaysia has no AHL to vacate seats for party-hopping parliamentarians but instead a constitutional provision that prohibits parliamentarians to recontest after resignation. In force since 11 May 1990, Article 48(6) of the Federal Constitution stipulates that

“A person who resigns his membership of the House of Representatives shall, for a period of five years, beginning with the date on which his resignation takes effect, be disqualified from being a member of the House of Representatives.”

This amendment was introduced by the then Prime Minister Mahathir Mohamad after Shahrir Samad, a dissident minister who resigned from the Parliament, recontested and won with a bigger margin his Johore Baru constituency in August 1988, turning the by-election into a mini referendum on the government. (Singh and Narayanan, 1989; Crouch, 1992: 335-35) To force the same change in state constitutions kept uniform by the Eighth Schedule to the Federal Constitution, Section 6(5) is added to the Schedule to read:

“A person who resigns his membership of the Legislative Assembly of this State or any other State, shall, for a period of five years beginning with the date on which his resignation takes effect, be disqualified from being a member of the Legislative Assembly of this state.”

This state-level ban remains in every state except Penang, when the provision was repealed when the state introduced its own AHL in 2012.

Note that the provision is so restrictive that a state assemblyperson who resigns from one DUN is barred from recontesting for another state legislative seat, not only in the same state, but in all states.

Technically, this ban can be circumvented by a lawmaker with absence without leave from legislative sitting for six months. Under Article 52 of the Federal Constitution or the corresponding provisions in the state constitutions, the seat will be vacated,

31 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

and the incumbent retains his/her eligibility for the by-election.

Notwithstanding this escape route, this ban on resignation and recontestation is the antithesis of AHL. Instead of forcing a lawmaker to seek a new mandate upon a change of party or coalition affiliation, the lawmaker is denied even the freedom to do so. Whether or not an AHL should be introduced, this ban should be removed at both the federal and state levels.

4.1.2 Four State-Level AHLs in Malaysia

Four states have introduced AHLs since 1986 however only two states still keep their untested AHLs. Kelantan’s AHL was struck down by the Supreme Court in 1992 and subsequently, Sabah repealed its AHL in 1995. Sarawak replaced its original AHL with a new AHL conditional on a preceding act that the lawmaker has made a voluntary undertaking to the Speaker of his/her intention to stay with the party. Penang introduced the most comprehensive version but so far, its constitutionality remains untested. (Table 4.1)

Table 4.1 State Level AHLs in Malaysia

State Sabah Kelantan Sarawak Penang

Year of Enactment 1986/1993 1991 1988 /1994 2012 Year of Repeal 1995 - 1994/ - - Article in State 18(2)(d) & (e) XXXIA 18(2)(d) & (e) / 17(7) 14A Constitution Leaving Party/ 18(2)(d) “resigns XXXIA “resigns or 18(2)(d) “he resigns 14A(1)(a) “having Expulsion/ Betrayal or is expelled from, is expelled from, or is expelled from the been elected as as ground for or for any reasons or for any reasons political party of which a candidate of vacation of seat whatsoever ceases to whatsoever he is a member.” [1988- a political party, be a member of, the ceases to be a 1994] he resigns or is political party of which member of such expelled from, or he is a member.” [1986- political ceases for any 1995] party” [null and reason whatsoever void since 1992] to be a member of that party”

32 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

State Sabah Kelantan Sarawak Penang

18(2)(e) “Abuse 17(7) “Any person who or betrayal of the has voluntarily given mandate given to him” an undertaking to the [1993-1995] Speaker in writing that he will not resign his membership from the political party for which he stood or to which he belonged when he is elected to the Dewan Undangan Negeri, shall, if he resigns from the political party after being elected, be disqualified in the interest of public integrity and morality from continuing to be a member of the Dewan Undangan Negeri with effect from the date he resigned from the political party.” [1994- ] Independent joining 18(2)(e) “he becomes a 14A(1)(b) “having party member of any political been elected party while being an otherwise than as independent member” a candidate of a [1988-1994] political party, he joins a political party.” Exemption 14A(2)(a) Dissolution or deregistration of party; (b) resignation upon election as speaker Decision Maker Legislature 17(7) Speaker (to Speaker (to inform receive the undertaking) the Election Commission of vacancy)

The first state-level AHL was enacted in 1986 by Sabah under the Parti Bersatu Sabah (PBS) government. Article 18(2)(d) of Sabah State Constitution would cause an ADUN to vacate his/ her seat for resignation from or expulsion by the party or “for any reasons whatsoever [ceasing] to be a member”, which could include dissolution of the party.

This AHL was first challenged by Abdul Karim Abdul Ghani, ADUN of Bongawan, who was expelled by his party United Sabah National Organisation (USNO) and had his seat subsequently vacated. His challenge on the ground that the State had no power to do so. He was denied leave by the Supreme Court which ruled that

“Disqualification in relation to membership of the legislature of the State is within the competency of the State Legislature to enact is indeed recognised by Federal Law in the Election (Conduct of Elections) Regulation 1981.”

33 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Two more seats were subsequently vacated, Ranau held by Mark Kording who left PBS, in 1989 and Usukan held by USNO president Tun Mustapha Harun who left his party to join United Malays National Organisation (UMNO), Barisan Nasional (BN) in 1991. Mark Kording lost in the consequent by-election while Mustapha Harun retained his seat under BN.

Effective in March 1993, Sabah inserted another AHL, Article 18(2)(e) which would a vacate an ADUN’s seat for “abuse or betrayal of mandate given to him”, which were left undefined.

Both the anti-hopping clauses were declared null and void in May 1993 after a successful challenge by Tun Mustapha Harun following the Supreme Court’s nullification of Kelantan’s AHL in 1992. Both clauses were formally repealed in 1995 under the new state government led by UMNO-BN, formed after en bloc defection of 20 out of PBS’ 25 ADUNs to form new parties.

Kelantan passed its AHL on 25 April 1991 but had it retroactively applied beginning 19 November 1990. Article XXXIA would vacate an ADUN’s seat if he or she “resigns or is expelled from, or for any reasons whatsoever ceases to be a member of such political party”. Earlier in March 1991, two Semangat 46 Party (S46) ADUNs, Nordin Salleh of Sungai Pinang and Wan Mohd Najib Wan Mohamad of Limbongan defected to UMNO. On 3 June, the Kelantan State Legislative Assembly passed a motion that declared their seats vacated. By-elections were held on 24 August and both incumbents were defeated by challengers from their old party. The duo sought a declaration that Article XXXIA was unconstitutional on the ground it restricted freedom of association provided for by Article 10(1)(c) of the Federal Constitution, under which only the Parliament may pass law to restrict on the grounds of security, public order or morality. They won the case at the High Court on 8 November 1991 and the appeal by the State Legislative Assembly was rejected by the Supreme Court on 3 April 1992 and both ADUNs were subsequently reinstated.

Interestingly, counsels of both sides referred to the Indian Judges’ arguments in the case of Mian Bashir Ahmad & Ors. v. the State of Jammu & Kashmir & Ors., [1982], over a state-level AHL in Jammu and Kashmir before the national AHL (The Tenth Schedule to the Indian Constitution) was introduced in 1985. The Indian Judges were split and the Malaysian judges shared the minority opinion which held that

“in testing the validity of State action with regard to fundamental rights, what the Court must consider is whether it directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ‘ineffective or illusory’”.

In Dewan Undangan Negeri Kelantan & Anor v Nordin Salleh & Anor [1992], the Supreme Court affirmed the High Court’s conclusion

“that the direct and inevitable consequences of Article XXX1A of the Kelantan State Constitution which is designed to enforce party discipline does impose a restriction on the exercise by members of the Legislature of their fundamental right of association guaranteed by Article 10(1)(c) of the Federal Constitution and that such restriction is not only protected by Article 10(1)(c) of the Federal Constitution but clearly does not fall within any of the grounds for disqualification specified under s. 6(1) of Part 1 of the Eighth Schedule of the Federal Constitution.”

It is important to note that the High Court Judge Eusof Chin in Nordin Salleh & Anor v Dewan Undangan Negeri Kelantan & Anor [1991], made the distinction between resignation and expulsion, noting that “Surely if a member of a political party is expelled by his party, it cannot be said that the member is exercising or is prevented from exercising his right under Article 10(1)(c) of the

34 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Federal Constitution.” The Judge also pointed out that “for any reasons whatsoever” could include dissolution of a lawmaker’s party, which would not make it unconstitutional. This implies that a state-level AHL is possible as long as the loss of membership is caused by other forces and not an exercise of his or her free will to disassociate. Such a limited AHL would of course be ineffective if the defecting lawmakers resign before expulsion or open to abuse by any quarter who can cause a party to be dissolved.

The third AHL was introduced in Sarawak in 1988 with similar wordings to Sabah. Following the 1992 verdict on Kelantan, Sarawak’s original AHL was dropped and replaced in 1994 by putting a vague condition that the ADUN must first have “voluntarily given an undertaking to the Speaker in writing that he will not resign his membership from the political party for which he stood or to which he belonged when he is elected to the Dewan Undangan Negeri” to circumvent the ultra vires effect.

The fourth AHL was introduced in Penang in a new era after the 2008 political tsunami which saw a stronger and united opposition aiming for federal power. The new Article 14A in the Penang State Constitution is more detailed that it also penalises independent ADUNs who join a party after election but exempts ADUNs whose party is dissolved or who resign from the party upon their election as speaker. In the aftermath of Sheraton Move, which caused the inclusion of four former government ADUNs in the opposition camp – two defected from PKR and two from Bersatu which left the PH coalition to lead the new PH coalition, Penang Government once threatened to table a motion to vacate the quartet’s seats but subsequently dropped the idea on the ground to avoid elections in the Covid-19 pandemic. (Mok, 2020a)

Notwithstanding the difference in language and coverage, both AHLs in Kelantan and Penang “seek to render the right to associate and to disassociate ‘ineffective and illusory’ wherein both the articles attach a punitive consequence to the exercise of freedom of association namely the vacation of the state assembly seat”, it is questionable that Penang’s Article 14A(1) can survive the 1992 ruling if challenged in court. The unprecedented destruction caused by party hopping is not a matter of concern by the 1992 verdict, which has ruled out political or policy considerations in decision on constitutionality. (Mohamed Reza Abdul Rahim, 2020)

4.1.3 Legal Obstacle at Both the Federal and State Levels

Unless the Federal Court decides to supersede the 1992 verdict with a new position, state-level AHLs are unviable when challenged in court. Some have argued that the Supreme Court’s judgement in 2009 that Section 46(1) of the Legal Profession Act 1976 which prohibits political party office holders from being a member of the Bar Council is constitutional may signal a different interpretation.2 For the Parliament to enact its own AHL or clear the way for state-level AHL, Article 10(2)(c) which reads, Parliament may by law impose — (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.

2 Opinion expressed by constitutional lawyer Andrew Khoo in several public forums.

35 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

would have to be amended. De facto Law Minister Takiyuddin Hassan takes the position that both the clause and electoral system have to be changed before introduction of AHL. (Nora Mahpar, 2020)

This puts the threshold for change at a two-third parliamentary majority when no party or coalition can be expected to hold in the foreseeable future necessary for constitutional amendment. However, PKR parliamentarian Hassan Karim argues that party-hopping has threatened “security” and “public order”, the two grounds permitted under Article 10(2)(c). (Ainaa Aiman, 2020) Former law minister Nazri Aziz and lawyer Andrew Khoo too believe that AHL can be implemented through amendment of election law while lawyers Nizam Bashir and Sivahnanthan Ragava see constitutional amendment as inevitable. (Palansamy, 2020).

Even if free of association may be restricted by the Parliament through normal legislation, one may question if it is constitutional to government disqualification of parliamentarians with a parliamentary act instead of a constitutional provision.

In any case, until the Federal Court changes its position, or the Federal Parliament changes the Constitution or at least enacts an AHL, state-level AHLs like those in Penang and Sarawak may just look ornamental.

4.1.4 Coalitional Realignment

Malaysia’s permanent/pre-election coalitions reduce the effectiveness of AHL because a vote has three possible mandate recipients: candidate, party and coalition. If a party quits its coalition to join another coalition, and one of its MP stays put with her party, has she committed party-hopping because she is now in a different coalition, or, has she not because she remains in the same party? Could a standard AHL stop the collapse of the PH government in February 2020? It would have worked on the 11 PKR parliamentarians (including MP of Selangau who did not join Bersatu eventually) by vacating their seats or deterring them from such move. However, it would not be able to punish the 21 Bersatu MPs who followed the party to quit the PH coalition. Instead, the five Bersatu MPs – later joined by the MP of Sri Gading – led by Mahathir who rejected the new PN coalition would have their seats vacated following their expulsion from the party. In other words, for voters who voted for PH instead of Bersatu, the AFL would have delivered the unintended outcome: the coalition’s loyalists got punished when their party changed coalition. An AHL is simply not capable of preventing a breakup of a pre-election coalition government like PH. If an AHL was already in place on the night of 9 May 2018, PH’s seats would have stayed at 121 seats, and a pull out of Bersatu with 11 parliamentary seats could still deny it the simple majority to potentially cause the collapse of PH government. If an AHL is broadened to punish any elected representative for leaving the coalition he or she represents in election, then it will effectively turn pre-election coalitions into super-parties. How will it then deal with breaking up of pre-election coalitions? If a party is expelled by other parties, will all its seats be vacated? If preserving coalitional unity is what many Malaysians want AHL for, they might be disappointed.

36 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

4.1.5 More Controlled Lawmakers and Weakened Legislatures

Even if the constitutional hurdle is overcome and pre-election coalitions are stable, AHL still has a fundamental problem, its unintended consequence of producing rubberstamp legislatures. As AHL is a disciplinary tool provided by the state to the parties by taking the way the defected or rebellious lawmakers’ legislative jobs, party leaders are given powerful control over their lawmakers. When the legislature is fragmented, AHL may check splintering and further fragmentation. However, when the government has a solid legislative majority, the Prime Minister/Chief Minister can use the AFL to cow all lawmakers in his/her party by threatening their removal from both the party and the House. India was a good example where the AHL was used “to [serve] the dominant party insofar it reinforces party discipline and coherence”. (Spiess and Petl, 2004: 221) Needless to say, “backbench revolts” that are so instrumental in tampering the Executive dominance will never be possible for Malaysia. As Malaysia’s parliament is already much weaker than its British counterpart and never had backbench revolt[ One possible exception happened on November 26, 2020 when 13 Opposition parliamentarians stood up to demand a division vote on the Second Reading of the 2021 budget after the Opposition’s party whips instructed their colleagues to avoid a division. (Malaysiakini Team, 2020)], an AHL will only make it worse.

4.2 Recall Election Law (REL)

4.2.1 Constitutional Hurdle Only at the Federal Level

At the federal level, a Recall Election Law (REL) is likely harder to introduce than an AHL. An REL requires an amendment to the Federal Constitution around Article 48 on “Disqualification for membership of Parliament” with a high threshold of a two- third parliamentary majority. In contrast, in the best scenario, an AHL may take only the form of a parliamentary act which requires only a simple majority of all voting MPs. On the other hand, a state-level REL is not readily obstructed by the 1992 verdict on AHL. Disqualification of members of a State Legislative Assembly is contained in Section 6, Part I of the Eighth Schedule to the Federal Constitution. While recall is not a ground originally provided in the template for State Constitutions, insofar that it is not found to be inconsistent with the Federal Constitution as in the case of Kelantan’s and Sabah’s AHLs, such addition can only be removed by an act of Parliament. As alluded by Judge Eusof Chin in the Kelantan case, this is provided by Article 71(4) of the Federal Constitution which reads: If at any time the Constitution of any State does not contain the provisions set out in Part I of the Eighth Schedule, with or without the modifications allowed under Clause (5) (hereinafter referred to as “the essential provisions”) or provisions substantially to the same effect, or contains provisions inconsistent with the essential provisions, Parliament may, notwithstanding anything in this Constitution, by law make provision for giving effect in that State to the essential provisions or for removing the inconsistent provisions. Also, in Abdul Karim Abdul Ghani v Legislative Assembly of Sabah (1987), Supreme Court Justice Hashim Yeop Sani also held that

37 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

‘Disqualification in relalation to membership of the legislature of the State is within the competency of the State legislature to enact.’ To introduce a state-level REL, a two-third legislative majority is needed to amend the state constitution. If the PH coalition is genuinely keen to deter party hopping, then REL is a possible tool in both Selangor and Penang where PH holds a two-third majority.

4.2.2 Multiple Purposes

Unlike AHL that is a purpose-built instrument against party-hopping, REL is a generic tool to allow voters - as employers - to terminate the employment contract with elected representatives – as employees - before the term of the legislature expires. Without REL, early termination of such contract is unilaterally vested with elected representatives, whether individually via resignation or collectively via early dissolution sought by the Executive. Introduction of RE is therefore justified in its own right and the grounds for recall can go beyond or even exclude party-hopping. Some politicians have expressed their fear that REL may be abused to trigger fresh elections in marginally won constituencies3.[ Amongst others are Rajiv Rishyakaran, ADUN of N34 Bukit Gasing, Selangor.] To address this concern, grounds of RE in Malaysia can be restricted to three matters: (a) Post-election change of party or coalition affiliation; (b) Conviction for a non-compoundable offence; and (c) Absence from legislative seating for more than 80% of time in a consecutive period of sixth months. Currently, as per Article 48(1)(e) of the Federal Constitution and their functional equivalent in the state constitutions, an elected representative can be disqualified for a sentence reaching a year of imprisonment or RM 2,000 in fine. In other words, the political career of a law-breaking lawmaker rests in the hand of judges. Having a recall option allows voters to have the discretionary power on whether or not to fire a convicted representative. Likewise, under Article 52 of the Federal Constitution and its functional equivalents in the state constitutions, a lawmaker loses his/her job for absence without leave in legislative sittings for a period of six months. As granting of leave is the prerogative of the speaker which may be liberally applied to let off lawmakers who skip sessions, this REL provision will allow voters to decide whether an incumbent who does not or cannot attend even just 20% of a sitting – even with the Speaker’s permission and on grounds like medical treatment – is fit to continue to occupy the seat. In reality, a 20% attendance requirement is very lenient. In 2019, the Dewan Rakyat met for 12 days from 1 July to 18 July and 36 days from 7 October to 5 December, meaning the highest number of sitting days over a period of six months was only 44 days (from 1 July to 30 November or from 6 July to 5 December), and hypothetically, an MP who attended the sitting for at least 9 days would not be susceptible to recall. As state assemblies sit for seven to 17 days in 2018 as compared to 68 days for Dewan Rakyat in 2019 (Wong, 2020a: 590), the minimum days of attendance required of an ADUN to be recall-proof would be even lower.

3 Amongst others are Rajiv Rishyakaran, ADUN of N34 Bukit Gasing, Selangor.

38 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

As the two extra grounds beyond party-hopping for recalls only take away the sole discretionary power to retain errant or truant lawmakers from judges and speakers, they cannot be abused. Lawmakers will not be subject to recalls if they do not commit a non-compoundable offence or fail to attend at least 20% of sitting days over six months.

The time frames allowed for an REL can also be restricted. Article 54(1) of the Federal Constitution and it functional equivalents in the state constitutions rule out by-election for vacancies that emerge in the last two years of the Legislature. In line with the provisions and considering the time to initiate recall elections, recalls on the grounds of conviction and absence may be disallowed if the conviction or absence happens in the last two and half years of the legislature’s term. For party- hopping, the prohibition period for RE may be limited to only the last six months of the legislature’s term for longer period of deterrence.

4.2.3 Protecting Voters’ Mandate Without Strengthening Parties

Unlike AHLs which inevitably result in party leaders’ stronger control of elected representatives, RELs can protect voters’ mandate without unnecessarily strengthening parties and weakening legislatures, avoiding the mandate dilemma under AHLs. With an REL, if a party or coalition has betrayed a constituency’s mandate, its elected representative who quits the party to uphold the constituents’ aspiration will not be disposed. This protects dissident lawmakers from party’s reprimand, encouraging backbench revolt which is sometime necessary to check the Executive.

4.2.4 Longer process and higher cost

In comparison to AHL which immediately causes a vacancy and pave way for a by-election after a defection, the extra steps, times and cost needed to cause such vacancy in REL are often seen as the latter’s weaknesses. However, such argument should be put in context. First, the extra time an REL takes as compared to AHL to vacate seats depends on the timeline set up in the recall election mechanism. (See 5.2) Second, recall election and its qualifying thresholds serve as filters for by-election. Instead of having many by-elections which may just re-elect the same incumbents, the EC can save time and cost for constituencies where the RE petitions may not past the thresholds to collect enough signatures, if we adopt a Taiwan-like system. If recall elections are held but the incumbent survives, then recall elections are then just the substitute for by-elections. Only in constituencies where recall elections are held and the incumbents successfully removed, the EC will be organising both the recall elections and the by-elections instead of just the by-elections under an AHL. Overall, a REL will save cost of conducting elections in constituencies where ineffective by-elections are inevitable under an AHL but add cost for the filtering process in constituencies where incumbents would simply lose the by-election. (Table 4.1) The operational superiority of one mechanism over another then depends on the portion of constituencies where incumbents can survive election despite changing parties or coalitions.

39 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

How To Deter Party Hopping in Malaysia? An Exploration of Remedies

The only clear advantage an AHL has over an REL is that the former can cause immediate vacancy and frustrate attempt to flip inter-party balance of power. However, this advantage must be weighed together with the damage that an AEL can pose to parliamentary democracy.

Table 4.2 A Benefit and Cost Analysis of Having an Anti-Hopping Law (AHL) and Recall Election (REL) Law

Type of In sufficient voters Insufficient voters to Sufficient voters Constituencies to force a recall carry the recall petition to carry the recall by strength of election to be held in a recall election petition in a recall support for the election party-hopping incumbents. Outcome under an By-election and By-election and By-election and Anti-Hopping Law incumbent’s re- incumbent’s re-election incumbent’s (AHL) election in landslide replacement Outcome under Neither recall Recall election and Recall election, a Recall Election election nor by- incumbent’s retention by-election and Law (REL) election incumbent’s replacement Benefit in Zero for both Some effect in Effective in both Deterring both, depending on Defections incumbent’s strength Cost in Deterring Cost of by-election Cost of by-election Cost of by-election Defections under AHL; Cost of under AHL; Cost of under AHL; Cost of verifying signatures verifying signatures verifying signatures, under REL and recall election recall election and by- under REL election under REL *For analytical parsimony, the effective thresholds for both by-election under AHL and REL are assumed to be the same, ie, all candidates who can survive under REL will survive under AHL and vice versa. How reasonable this assumption is may depend largely on the parameters in REL.

4.3 Sabah 2020 – Where Both AHL and REL would have Failed

Both an AHL under FPTP and an anti-hopping REL have two goals: first, to restore voters’ control on their mandate given to the elected representatives; and second, to restore the balance of power if voters penalise the party-hopping incumbents. If the second goal is achieved, party hopping will be deterred. On the other hand, if party-hopping incumbents get re-elected, then voters’ control is restored but party defection may not be deterred.

Sabah’s 16th State Election on 26 September 2020 gave us the opportunity to assess the effectiveness of both AHL and REL in a thoughtc exercise. It was an early election forced by the defection of 13 ADUNs who quit the Warisan-led Government and joined UMNO’s former Chief Minister Musa Aman. Hence, the state election was akin to collective by- elections caused by an AHL or an REL minus the signature collection campaign and recall elections, except that 47 other constituencies and 13 new constituencies also went to poll. Between this election and the last election on 9 May 2018, as many as 24 ADUNs had changed both party and coalition affiliations, 17 of them tried defending their seats and 11 succeeded, yielding a 65% success rate. Zooming into the 13 latest party-hoppers, 10

40 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

sought re-election in the same constituency and four won (40%) When analysed by candidacy type, three out of four (75%) who recontested under a major party (all in the PN camp rebranded as the Gagasan Rakyat Sabah, GRS, camp) won while only one of six (17%) who recontested as independent candidates survived. Notwithstanding the small number of cases, the pattern is clear: Sabah voters do not mind re-electing party-hoppers as long as they join a ruling party. (Table 4.2)

Table 4.3 Electoral Fortune of Party-hopping or Coalition-changing ADUNs in Sabah, 2018-2020

Recontested and won Recontested and lost

under Not under old old party contesting Party party after under as under as Total after after multiple new party independent new party independent changing defection defections coalition

BN-UMNO 16 1 2 6 16 BN-PBS 4 2 6 BN-UPKO 1 2 1 15 BN-PBRS 1 1 PH-PKR 1 1 Total 519 1 1 5 7 29

Source: Author’s analysis

Under an AHL, the 13 ADUNs would have their seats vacated, this would temporarily keep Warisan Chief Minister Shafie Apdal in power with a 32:20 margin4.[ For simplicity in analysis, the AHL and REL are assumed to be in force just before the latest round of defection. At the time of dissolution, Shafie held 32 seats (including three “nominated members”) while Musa held 33 seats (including two “nominated members”). ] In the actual snap election, four seats were retained by party-hoppers, four other seats won by other GRS candidates, three by independent candidates who later joined GRS in government and the last two seats were won by Warisan and its ally PKR. If the same result were to emerge under the AHL, Shafie would have a small majority of 34:28 over Musa, before the three independent ADUNs taking side. Under an REL, if Shafie did not call for a snap election, Musa would take over as Chief Minister before the 13 party-hoppers face their recall elections in a few months’ time. If the same result emerges, then Shafie would command a new majority to oust Musa. The difference between AHL and REL is the immediacy of seat vacancy under AHL which allows the incumbent government to control damage and buy time. However, as most voters do not penalise party hopping, nothing would stop Musa from inducing more lawmakers to cross over. And with a smaller battlefield than fighting all 73 seats in the actual state election, where resources to buy support could be channelled more effectively, it could have been possible for Musa or Shafie to make more gains.

Sabah also illustrated the complexity brought about by coalitional realignment as two parties in the BN camp also changed their coalitional affiliation soon after the 2018 election – PBS (6 seats) went independent while UPKO (5 seats) ditched BN to join the Warisan-PH

4 For simplicity in analysis, the AHL and REL are assumed to be in force just before the latest round of defection. At the time of dissolution, Shafie held 32 seats (including three “nominated members”) while Musa held 33 seats (including two “nominated members”).

41 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

camp. Both parties had subsequently suffered defection of lawmakers. Both PBS defectors recontested as independents but lost to their old party or its ally. On the other hand, UPKO only managed to retain one seat brought from BN while all but one of remaining seats retained the incumbents who stood under a new party in BN’s successor, GRS or as an independent. An AHL would not be able to punish both parties for defecting BN in 2018 while an REL may allow voters to replace those who quit their parties.

While the popularity of party-hoppers in Sabah may not be replicated everywhere especially West-coast states in Peninsular Malaysia, Sabah nevertheless reminds us of the power of incumbency advantage, which in turn reflects not just the salience of personal popularity, but more likely the salience of clientelist machinery oiled by the federal and state ruling parties. (Wong, 2020c) To deter party defection, remedies would have to be found elsewhere: electoral mandate for party, Confidence and Supply Agreement (CSA) and empowering of opposition lawmakers and government backbenchers.

4.4 Electoral Mandate for Parties

To strengthen parties, the most direct solution is to let voters choose parties instead of candidates and impose AHL on lawmakers who win on party mandate. In South Africa (Closed-List Proportional Representation, CLPR), New Zealand (Mixed Member Proportional, MMP) and Taiwan (Mixed Member Majoritarian, MMM), party-list lawmakers who change their party affiliation will be replaced by the next eligible candidates from the same list, allowing seamless transition without any by-election. Under MMP which is used for the New Zealand parliament and the South African municipal councils, AHL is also imposed on First Past The Post (FPTP) lawmakers to preserve election-night proportionality.

Given Malaysia’s socio-political environment, pure CLPR may produce some parties with strong leaders, weak lawmakers and narrow identity base, potentially worse than now. On one hand, as party leaders can both control the order of candidates on the party list and hence their electability and terminate a lawmaker’s legislative career by expelling him or her from the party, such parties may develop personality cult rather than issue niches. This may make some voters further disillusioned with democracy. On the other hand, retaining FPTP constituencies while introducing CLPR in complement may encourage some moderation in identity politics through “interethnic vote pooling” (Horowitz, 2018) or “extensive intergroup bargaining” (Spiesss and Petl, 2004:205).

Articles 116 and 117 of the Federal Constitution dictate that respectively federal and state elections must be based on single-member constituencies and hence must be amended before CLPR can be introduced. Hence, building an interparty consensus would be vital for progress in this direction.

However, there is room for the states to introduce CLPR indirectly through appointment of nominated lawmakers, whose constituency would be statewide and resemble multimember constituencies of CLPR. Sabah has provided for the space of six nominated seats since Independence. Recently, Pahang has followed suit with a constitutional amendment to establish up to five nominated seats. As both states do not specific any requirement for such nominated members and Sabah has often filled them with politicians from the government parties, these are effectively bonus seats for government. Taking a different path of top-up seats, Terengganu amended its state constitution in 2004 to allow for appointment of up to four nominated ADUNs to represent women and non-Muslims if none from the two groups is elected. If such nominated seats are allocated through parties

42 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

based on their FPTP vote shares, then effectively a single-ballot MMM system emerges. (Wong, 2020b) In ensuring the attainment of 30% women representation in the state legislature, Penang announced on Human Rights Day 2020 announced its plan to introduce “Top-up Women Only Additional Seats” (TWOAS), which would have parties contesting in the state election under FPTP to also nominate women candidates on separate lists and appoint women nominated members proportionally from these lists should elected women from FPTP constituencies fell below 30% of the total. (Bernama, 2020a)

4.5 Confidence and Supply Agreement

Confidence and Supply Agreement (CSA) has gradually gained currency by early June 2020 with PH’s failure to topple PN through reverse defection. Appearing first as interparty “ceasefire” agreement without the name CSA, it was first mooted by three civil society groups and soon echoed by DAP.

On 10 June, Coalition for Clean and Fair Elections (Bersih 2.0), Plan of Action for Malaysia (GBM) and Malaysian Islamic Youth Movement (ABIM) called upon government and opposition parties to forge consensus on six key reforms: equality before the law, legislative reform, political finance reform, recall elections, decentralisation and electoral reform. (Bersih 2.0, GBM and ABIM, 2020) By mid-June, DAP organising secretary Anthony Loke proposed “ceasefire” with parliamentary reform and equal CDF as the conditions. By late October, CSA was framed as an alternative to “emergency proclamation” Prime Minister Muhyiddin Yassin unsuccessfully sought to suspend the Parliament and avoid a budget defeat threatened by PH leader Anwar Ibrahim. (Dorall, 2020)

The first CSA finally emerged in Perak after the dramatic ouster of Bersatu Chief Minister Ahmad Faizal Azumu by a no-confidence vote secretly plotted by Bersatu’s ally-cum-rival UMNO and PH on 4 December. The new Chief Minister from UMNO Saarani Mohamad announced equal CDF for all 59 state assemblypersons, access for Opposition lawmakers to various district-level committees, formal recognition of Legislative Opposition Leader and reserving the chair of Public Accounts Committee to an opposition lawmaker. (Prakash, 2020)

As angry Bersatu leaders threatened to oust UMNO Chief Minister in Johor as a retaliation to Perak, UMNO and PH too moved closer although short of signing a CSA. Chief Minister Hasni Mohammad called PH strategic partners and raised CDF for opposition lawmakers substantially from RM 50,000 to RM 200,000, although still falling short of equal allocation. (Syed Jamal Zahiid, 2020)

CSAs signifies reduced antagonism between government and opposition. With some sharing of power and resources with the opposition, governments are safe from revolt or blackmail from allies while opposition get to function healthily. As long as all major parties can accept the balance of power that emerges on election night, no AHL would be needed to preserve the government.

4.6 Empowerment of Opposition Lawmakers and Government Backbenchers

Ultimately, party hopping driven by resource and power competition rather than ideological or programmatic differences is a shortcut by opposition lawmakers/government

43 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

backbenchers to improve their position vis-à-vis government lawmakers/government frontbenchers. The bigger the differentials between government and opposition lawmakers and between government frontbenchers and backbenchers, and the bigger the prospect of improvement, the likelier is party hopping.

To prevent party-hopping is then

−− to reduce the differentials between government frontbenchers, government backbenchers and opposition lawmakers; −− to minimise the prospect of improvement by way of defection; and −− to maximise the prospect of improvement in the next election by doing their best in their current position.

4.6.1 Legislative Reform

How can opposition lawmakers be convinced that they will be better rewarded by voters in the next election by diligently discharging their duties now than by joining the government? Likewise, how can government backbenchers be convinced that they stand a better chance to move up to the government frontbench by working hard in the government backbench than to cross over the floor? To start with, they must have a stage to shine when they do their work. The stage is of course the legislature. In a functioning legislature, non-executive lawmakers get to scrutinise the government’s bills, policies, budget and implementation. This would require −− ample number of days in session to scrutinise bills and government; −− A comprehensive set of select committees to cover all executive portfolios and involve all non-Executive lawmakers (termed “private members”), with their meetings livestreamed; −− A formally recognised shadow cabinet with access to key government information; −− An effective avenue for private member’s bills; and −− Multipartisan agenda settings which include non-government business day.

This is unfortunately far from the reality. −− In 2019, the Malaysian Parliament met for only 68 days. In contrast, Canada’s federal parliament meets for an average of 135 days. −− Malaysia rarely had special select committees before 2018. While PH introduced 10 thematic select committees in 2019, each had only seven members, as many as 82 MPs were left without any executive, house or committee responsibility. Out of the 82 (37%), 57 were from opposition while remaining 25 were from PH. (Table 4.3) −− Shadow cabinet is neither recognised by government nor desired by the opposition.

44 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

−− No private member’s bill has ever become law and only the controversial Bill 355 to enable states to enforce Hudud punishments tabled by Hadi Awang, MP of Marang and president of the Pan-Malaysian Islamic Party (PAS) ever got to be debated. −− Agenda setting is decided by the Speaker and the Government.

Table 4.4 Malaysian Parliamentarians by National Roles as of December 5, 2019*

Government National Roles Opposition Total & Allies

(a) Deputy Speakers 2 2

(b) Government Front Bench 49 49

(d) Other Private MPs on only Committees of Selection, Standing Orders, House, Privileges and PAC 13 6 19

(e) Private MPs on only 10 Special Select Committees 50 19 69

(f) Private MPs without committee responsibilities 25 57 82 TOTAL 139 83 222 (% of F by bloc) 18% 69% 37%

*The last day the Parliament was in session before the 2020 party coup Source: Wong (2020a, Table 2)

State Legislatures are weaker than the Parliament in all these regards. As most legislative matters fall under the Federal with few substantive matters like Islam, land, local government and town-planning are either state or concurrent matters, state legislatures have few matters to debate let alone legislate. Most states pass only a bill a year and that is the ‘supply bill’ (budget). Selangor may be the only state with select committees more than the staple ones like Public Accounts Committee (PAC), Selection, House, Privileges and Standing Order. Some states have not even formally recognised the office of legislative opposition leaders.

The little room for opposition lawmakers and government backbenchers to perform legislative oversight and initiate or modify bills effectively reduces the legislatures’ primary function to only one: as the passive “electoral college” (Wong, 2020a) of the Prime Minister/ Chief Minister that ritually passes every budget and never passed motion of no-confidence except in four unusual occasions: Sarawak, 1966; Selangor, 1976; Kelantan, 1977; and the latest, Perak, 2020. By default, the most visible work of non-executive lawmakers is constituency work which include dispensing fund for local needs, creating the strong need for them to be with the government, at least either federal or state.

4.6.2 Limiting “Expanded Payroll Vote”

Payroll vote is the British term to characterise MPs who must vote with the governments as frontbenchers who are bound by the “Cabinet Collective

45 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Responsibility” doctrine (Taylor, 2016). Expansion of payroll vote naturally strengthens the government’s hand in parliamentary voting and weakens legislative oversight. The number of paid ministers had been capped at 109 by the Ministerial and Other Salaries Act 1975 and further reduced to 95 (14.6% of total 650 seats in the House of Common) by the House of Commons Disqualification Act 1975. The PM can however freely appoint private secretaries, trade envoys, vice-chairs and other positions that may be deemed as the wider payroll vote. As of November 2019, 95 MPs were counted as payroll votes while 19 trade envoys and deputy/vice chairs comprise the wide payroll vote. (Zolgekar, 2019)

To discourage party defection, Malaysia obviously should emulate India and UK in restricting the size of federal government frontbench but also go further in barring MPs taking up any “remunerative political post”. At the state level, the size of cabinet is capped at 11 including the Chief Minister/Menteri Besar.

In Malaysia, the size of MPs with frontbench portfolio rose from 50 (36%) under PH to 65 (58%) under PN, as Prime Minister Muhyiddin Yassin needed a generous dishing of executive jobs to assemble a coalition that would give him a majority. (Table 4.4) For the same purpose, Muhyiddin created additional payroll vote by extensively dishing out lucrative appointments in statutory bodies or government- linked companies (GLCs) to government backbenchers. As of August 2020, after excluding 65 frontbenchers, two deputy speakers and a Chief Minister, 35 out of the remaining 45 PN parliamentarians had a second salary from a statutory body or a GLC. (Table 4.4) The last 10 who had not received any second job offer included the scandal-tainted former Prime Minister Najib Razak and five other UMNO parliamentarians who still face corruption trials.

To discourage party defection, Malaysia obviously should emulate India and UK in restricting the size of government frontbench but also go further in barring MPs taking up any “remunerative political post”.

Table 4.5 Payroll vote in Muhyiddin Government by Party (as of 7 June 2020)

Frontbenchers Ministers/ % of Deputy Total Government Parties Special From the Upper From the Lower House Payroll Ministers Total MPs Envoy House (Payroll Vote) Vote

Bersatu (Muhyiddin) 11 15 26 2 24 31 77% BN-UMNO 9 8 17 1 16 39 41% GPS-PBB 4 37 7 13 54% PAS 4 59 9 18 44% Non-politicians 2 02 2 BN-MCA 1 34 2 2 2 100% BN-MIC 1 01 1 1 100% PBS 1 01 1 1 100% GPS-PRS 0 11 1 2 50% GPS-PDP 1 01 1 2 50% PBRS 0 11 1 1 100% STAR 0 11 1 1 100% GPS-SUPP 1 01 1 1 100% Independent 0 00 1 0% Total 35 37 72 7 65 113 58%

Source: Wong (2020a, Table 2) 46 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Table 4.6 PN’s ‘Additional Payroll Vote’ by Party

Entity No Constituency Member of Parliament Party Entity Sector Type 1 Besut Idris Jusoh UMNO FELDA SB Land/Ag 2 Machang Ahmad Jazlan Yaakub UMNO MPOB SB Ag/Cmdty 3 Jerantut Ahmad Nazlan Idris UMNO MRB SB Ag/Cmdty Mohd. Salim Mohd. 4 Jempol UMNO RISDA SB Ag/Cmdty Shariff 5 Tanjong Karang Noh Omar UMNO PUNB GLC Ind/Ent Cameron Amanah 6 Ramli Mohd. Noor UMNO GLC Ind/Ent Highlands Raya 7 Kimanis Mohamad Alamin UMNO IPCM SB Ind/Ent 8 Gerik Hasbullah Osman UMNO SPNB GLC Constr/Prop UDA 9 Jelebu Jalaluddin Alias UMNO GLC Constr/Prop Holdings Prasarana 10 Pasir Salak Tajuddin Abdul Rahman UMNO GLC Infra Malaysia 11 Rompin Hasan Arifin UMNO PAAB GLC Util/E 12 Padang Terap Mahdzir Khalid UMNO TNB GLC Util/E 13 Parit Mohd. Nizar Zakaria UMNO LPPKN SB Soc/Cul Ahmad Tarmizi 14 Sik PAS MADA SB Land/Ag Sulaiman Nik Mohamed Abduh 15 Bachok PAS KESEDAR SB Land/Ag Nik Abdul Aziz Nik Muhammad Zawawi 16 Pasir Puteh PAS LPP SB Ag/Cmdty Salleh Shaharizukirnain Abd. Tekun 17 Setiu PAS GLC Ind/Ent Kadir Nasional 18 Pasir Mas Ahmad Fadhli Shaari PAS PTPK SB Ind/Ent Kemaman 19 Kemaman Che Alias Hamid PAS Port SB Infra Authority Wan Hassan Mohd 20 Dungun PAS SPAN SB Util/E Ramli 21 Jerai Sabri Azit PAS ITBM GLC Soc/Cul 22 Baram Anyi Ngau GPS-PDP MCB SB Ag/Cmdty 23 Batang Lupar Rohani Abdul Karim GPS-PBB Bernas GLC Ag/Cmdty 24 Hulu Rajang Wilson Ugak Kumbong GPS-PRS NIOSH SB Ind/Ent 25 Tanjong Manis Yusuf Abd. Wahab GPS-PBB CIDB SB Constr/Prop Bintulu 26 Betong Robert Lawson Chuat GPS-PBB Port SB Infra Authority 27 Igan Ahmad Johnie Zawawi GPS-PBB IWK GLC Util/E Lukanisman Awang 28 Sibuti GPS-PBB SEDA SB Util/E Sauni Krattangan 29 Kota Samarahan Rubiah Wang GPS-PBB SB Ind/Ent Malaysia

47 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Entity How To Deter PartyNo Hopping Constituency in Malaysia? MemberAn Exploration of Parliament of Remedies Party Entity Sector Type 30 Tasek Gelugor Yamani Hafez Musa Bersatu FELCRA GLC Land/Ag Entity No Constituency Mohamad Member of Fasiah Parliament Mohd. Party Entity Sector 31 Sabak Bernam Bersatu FAMA TypeSB Ag/Cmdty Fakeh 30 Tasek Gelugor Yamani Hafez Musa Bersatu FELCRA GLC Land/Ag Syed Abu Hussin Hafiz 32 Bukit Gantang Bersatu LKIM SB Ag/Cmdty SyedMohamad Abdul Fasiah Fasal Mohd. 31 Sabak Bernam Bersatu FAMA SB Ag/Cmdty Fakeh 33 Libaran Zakaria Mohd. Edris Bersatu PNS GLC Ind/Ent Syed Abu Hussin Hafiz 3234 BukitBeaufort Gantang Azizah Mohd. DunBersatu MARA LKIM SB Ag/CmdtyInd/Ent Syed Abdul Fasal Pro-PN, 3335 LibaranLubok Antu JugahZakaria Muyang Mohd. Edris BersatuMTIB PNS GLC SBInd/Ent Ag/Cmdty partiless Note:34 GLC Beaufort = Government-linked Azizah Company; Mohd. DunSB = Statutory BersatuBody; Ag/Cmdty MARA = Agriculture-Commodity; SB Ind/Ent Constr/ Source: Wong (2020a, Table 3) Prop =Construction-Properties; Ind/Ent = Industry/Entrepreneurship; Infra = Infrastructure; Land/Ag = Land/ Pro-PN, Agriculture;35 Lubok Soc/Cul Antu = Society/Culture; Jugah Muyang Util/E = Utilities/Energy Sources:MTIB The Edge (2020) SB and Ag/Cmdty other media partiless reports. 4.6.3 Equitable Constituency Development Fund (CDF) Source: Wong (2020a, Table 3) When constituency service is lawmakers’ main function, funds to maintain service 4.6.3 Equitablecentre, assist Constituency needy constituents Development and to Fund finance (CDF) small public works become instrumental for a lawmaker’s electability, especially in poorer and less developed Whenconstituencies constituency where service constituents’ is lawmakers’ vote choicemain function, may much funds be todetermined maintain service by the tangiblecentre, assist benefits needy they constituents get. and to finance small public works become instrumental for a lawmaker’s electability, especially in poorer and less developed The practice of denying – entirely during BN’s era and substantively since 2018 - constituencies where constituents’ vote choice may much be determined by the opposition lawmakers the same amount of Constituency Development Fund (CDF) tangible benefits they get. given to government lawmakers become an effective tool to disadvantage opposition lawmakersThe practice and of inducedenying their – entirely defections. during BN’s era and substantively since 2018 - opposition lawmakers the same amount of Constituency Development Fund (CDF) The differential in CDF between government and opposition lawmakers is substantial. given to government lawmakers become an effective tool to disadvantage opposition Currently, a PN parliamentarian gets annually RM 4.3 Million (including RM 0.3 lawmakers and induce their defections. Million for running constituency centres) if she is from East Malaysia and RM 3.8 MillionThe differential if otherwise in CDF while between an opposition government MP andgets opposition only RM 100,000. lawmakers (Kiniguide, is substantial. 2020) Currently, a PN parliamentarian gets annually RM 4.3 Million (including RM 0.3 In Selangor, CDF varies by electorate size of state constituencies: RM 880,000 for Million for running constituency centres) if she is from East Malaysia and RM 3.8 those with more than 60,000 voters, RM 830,000 for those with 45,000-60,000 voters Million if otherwise while an opposition MP gets only RM 100,000. (Kiniguide, 2020) and RM 780,000 for those with 30,000-45,000 voters and RM 730,000 for those with lessIn Selangor, than 30,000 CDF variesvoters. by It electoratealso varies size by classesof state ofconstituencies: ADUNs: Executive RM 880,000 Councillor for (Exco)those with and moreSpeaker than get 60,000 a premium voters, of RM RM 830,000 300,000 for while those pro-government with 45,000-60,000 independent voters ADUNsand RM (Pejuang)780,000 for and those opposition with 30,000-45,000 ADUNs respectively voters and can RM access 730,000 only for RM those 300,000 with andless RMthan 150,000 30,000 voters.out of CDF It also while varies the byrest classes would ofbe ADUNs: dispensed Executive by “constituency Councillor coordinators”(Exco) and Speaker who areget normallya premium government of RM 300,000 party while politicians pro-government being groomed independent to be candidatesADUNs (Pejuang) in the andnext opposition election. ADUNs respectively can access only RM 300,000 and RM 150,000 out of CDF while the rest would be dispensed by “constituency In Sabah, RM 1.1 million is provided annually for every state constituency as the coordinators” who are normally government party politicians being groomed to be base line. However, state cabinet members get extra RM 1 million while assistant candidates in the next election. ministers get RM 40,000. While these funds will be dispensed through a Community DevelopmentIn Sabah, RM Leader1.1 million (Pemimpin is provided Pembangunan annually for Masyarakat,every state constituency PPM), government as the lawmakersbase line. However, get to nominatestate cabinet their members PPMs whileget extra PPMs RM for1 million the opposition-held while assistant constituenciesministers get RM would 40,000. be While appointed these funds by the will Chief be dispensed Minister’s through office. a Community The State GovernmentDevelopment also Leader gives (Pemimpin an extra CDF Pembangunan to parliamentarians Masyarakat, (RM 200,000 PPM), duringgovernment 2018- 2020)lawmakers but the get CDFs to nominate for opposition-held their PPMs constituencies while PPMs wouldfor the go opposition-held to the division chairpersonconstituencies of the would dominant be appointedruling party, byWarisan the Chief during Minister’s 2018-2020 office. and now Bersatu.The State5 Government also gives an extra CDF to parliamentarians (RM 200,000 during 2018- 2020) but the CDFs for opposition-held constituencies would go to the division chairperson of the dominant ruling party, Warisan during 2018-2020 and now Bersatu.5 5 Information obtained by author from several lawmakers.

48 5 Information obtained by author from several lawmakers. How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Entity No Constituency Member of Parliament Party Entity Sector Type 30 Tasek Gelugor Yamani Hafez Musa Bersatu FELCRA GLC Land/Ag Mohamad Fasiah Mohd. 31 Sabak Bernam Bersatu FAMA SB Ag/Cmdty Fakeh Syed Abu Hussin Hafiz 32 Bukit Gantang Bersatu LKIM SB Ag/Cmdty Syed Abdul Fasal 33 Libaran Zakaria Mohd. Edris Bersatu PNS GLC Ind/Ent 34 Beaufort Azizah Mohd. Dun Bersatu MARA SB Ind/Ent Pro-PN, 35 Lubok Antu Jugah Muyang MTIB SB Ag/Cmdty partiless

Source: Wong (2020a, Table 3)

4.6.3 Equitable Constituency Development Fund (CDF)

When constituency service is lawmakers’ main function, funds to maintain service centre, assist needy constituents and to finance small public works become instrumental for a lawmaker’s electability, especially in poorer and less developed constituencies where constituents’ vote choice may much be determined by the tangible benefits they get. The practice of denying – entirely during BN’s era and substantively since 2018 - opposition lawmakers the same amount of Constituency Development Fund (CDF) given to government lawmakers become an effective tool to disadvantage opposition lawmakers and induce their defections. The differential in CDF between government and opposition lawmakers is substantial. Currently, a PN parliamentarian gets annually RM 4.3 Million (including RM 0.3 Million for running constituency centres) if she is from East Malaysia and RM 3.8 Million if otherwise while an opposition MP gets only RM 100,000. (Kiniguide, 2020) In Selangor, CDF varies by electorate size of state constituencies: RM 880,000 for those with more than 60,000 voters, RM 830,000 for those with 45,000-60,000 voters and RM 780,000 for those with 30,000-45,000 voters and RM 730,000 for those with less than 30,000 voters. It also varies by classes of ADUNs: Executive Councillor (Exco) and Speaker get a premium of RM 300,000 while pro-government independent ADUNs (Pejuang) and opposition ADUNs respectively can access only RM 300,000 and RM 150,000 out of CDF while the rest would be dispensed by “constituency coordinators” who are normally government party politicians being groomed to be candidates in the next election. In Sabah, RM 1.1 million is provided annually for every state constituency as the base line. However, state cabinet members get extra RM 1 million while assistant ministers get RM 40,000. While these funds will be dispensed through a Community Development Leader (Pemimpin Pembangunan Masyarakat, PPM), government lawmakers get to nominate their PPMs while PPMs for the opposition-held How To Deter Party Hopping in Malaysia? An Exploration of Remedies constituencies would be appointedHow To Deter Partyby the Hopping Chief in Malaysia? Minister’s An Explorationoffice. of TheRemedies State Government also gives an extra CDF to parliamentarians (RM 200,000 during 2018- 2020) but the CDFs for opposition-heldHow To Deter Party constituencies Hopping in Malaysia? would AnEntity Explorationgo to the of division Remedies No Constituency Member of Parliament Party Entity Sector chairperson of the dominant ruling party, Warisan during 2018-2020Type and now Bersatu.5 30 TasekSarawak Gelugor provides Yamani RM Hafez5 million Musa annually Bersatu under “Rural FELCRA TransformationGLC Land/Ag Programme” (RTP) for every Mohamadgovernment Fasiah ADUN Mohd. but nothing for the opposition lawmakers. (FMT 31 Sabak Bernam Bersatu FAMA SB Ag/Cmdty 5 Information obtainedReporters, by author 2017) fromFakeh several lawmakers. Syed Abu Hussin Hafiz 32 Bukit Gantang Bersatu LKIM SB Ag/Cmdty This vast differentialSyed Abdul implies Fasal that for some constituencies, election may simply be a battle of money - not limited to campaign period but throughout the years between 33 Libaran Zakaria Mohd. Edris Bersatu PNS GLC Ind/Ent elections - if one leading candidate is representing the federal government and the 34 Beaufortother is representing Azizah theMohd. state Dun government. Bersatu Meanwhle, MARA a candidate SB who Ind/Ent represents a party that is opposition at both thePro-PN, federal and state levels would be most 35 Lubok Antu Jugah Muyang MTIB SB Ag/Cmdty disadvantaged. This explains why UMNO’spartiless lawmakers like Bagan Serai (Malaysiakini,

Source: Wong2018) (2020a, and TableLabuan 3) (Lee, 2018) would leave the party after its defeat at both the federal and state levels. Likewise, PH’s last defecting MP, from the Sarawak inland constituency of Lubok Antu said it candidly in parliamentary debate: “And this is 4.6.3 Equitable Constituency Development Fund (CDF) why I shifted my support to Perikatan – to get more allocations for my constituents.” When(Tan et constituency al., 2020) For service similar is lawmakers’reasons, three main PH function, state assemblypersons: funds to maintain Buntong service centre,from the assist state needyof Perak constituents (Borneo Post, and 2020) to finance and Kuala small Penyu public and Sugutworks frombecome the instrumentalstate of Sabah for (Geraldine, a lawmaker’s 2020) electability, defected especiallyto install a in PN poorer state and government less developed within constituenciesmonths after PN’s where successful constituents’ power vote grab choice at the mayfederal much level. be determined by the tangibleTo end resource-driven benefits they defection,get. the playing field in CDF must be levelled. Following Thethe CSApractice in Perak of denying and similar – entirely development during BN’s in Johor, era andPH statesubstantively lawmakers since have 2018 been - oppositiongiven the same lawmakers CDF as the government same amount ADUNs of Constituency or a substantial Development increase as Fund compared (CDF) givenfrom theto government past. UMNO’s lawmakers Perlis state become government an effective too hadtool announcedto disadvantage that opposition lawmakerslawmakers andwould induce be given their some defections. allocations. (Bernama, 2020b) The differential in CDF between government and opposition lawmakers is substantial. 4.6.4 Decentralisation and Local Democracy 4.6.4 DecentralisationCurrently, a PN parliamentarian and Local Democracy gets annually RM 4.3 Million (including RM 0.3 MillionThe demand for running and expectation constituency for centres) lawmakers if she to isprovide from East constituency Malaysia andservice RM and3.8 The demand and expectation for lawmakers to provide constituency service and Milliondispense if otherwise CDF cannot while be an minimised opposition asMP long gets asonly bureaucracy RM 100,000. are (Kiniguide, inadequately 2020) dispense CDF cannot be minimised as long as bureaucracy are inadequately Inresponsive Selangor, CDFand accountablevaries by electorate to ordinary size of citizens state constituencies: under Malaysia’s RM 880,000centralised for responsive and accountable to ordinary citizens under Malaysia’s centralised thosefederalism. with more (Hutchinson, than 60,000 2014; voters, Wong RM and 830,000 Chin, for2011). those with 45,000-60,000 voters federalism. (Hutchinson, 2014; Wong and Chin, 2011) and RM 780,000 for those with 30,000-45,000 voters and RM 730,000 for those with Having no elected local governments contributes greatly to inefficacy and less than 30,000 voters. It also varies by classes of ADUNs: Executive Councillor inconveniences experienced by citizens. In fact, not only citizens cannot hold (Exco) and Speaker get a premium of RM 300,000 while pro-government independent accountable the local administrators whom they do not vote in, even appointed ADUNs (Pejuang) and opposition ADUNs respectively can access only RM 300,000 councillors often cannot demand local administrators to meet citizens’ needs as and RM 150,000 out of CDF while the rest would be dispensed by “constituency they have no electoral mandate to speak authoritatively. coordinators” who are normally government party politicians being groomed to be candidatesState governments in the next however election. are not interested in having elected governments because states have too little substantive powers, mainly on Islam, land, local In Sabah, RM 1.1 million is provided annually for every state constituency as the government and town planning. Local elections risk making the states irrelevant, base line. However, state cabinet members get extra RM 1 million while assistant especially for smaller states. As a result of their limited powers, state legislatures ministers get RM 40,000. While these funds will be dispensed through a Community have little to debate that they met from six to 17 days in 2019 and most of them Development Leader (Pemimpin Pembangunan Masyarakat, PPM), government pass only one bill a year, the supply bill (budget). Having little room for legislative lawmakers get to nominate their PPMs while PPMs for the opposition-held oversight makes intermediating between constituents and government agencies a constituencies would be appointed by the Chief Minister’s office. The State key function for ADUNs, if not also MPs. Government also gives an extra CDF to parliamentarians (RM 200,000 during 2018- 2020)Viewed but holistically, the CDFs Malaysianfor opposition-held political elites constituencies are largely wouldmisassigned go to the and division under- chairpersonutilised. Of the of the800 dominant federal and ruling state party, lawmakers Warisan nationwide, during 2018-2020 only some and 200now executive Bersatu.5 members – ministers, deputy/assistant ministers, executive councillors - are fully utilised as they have fulltime duties. The 600 others have little national or statewide roles and are not visible unless they take parts in social events or make strong 5 Information obtained by author from several lawmakers. statements in the media. Many of these government backbenchers and opposition lawmakers are qualified and competent to be mayors and council presidents. Leading 49 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

utilised as they have fulltime duties. The 600 others have little national or statewide roles and are not visible unless they take parts in social events or make strong statements in the media. Many of these government backbenchers and opposition lawmakers are qualified and competent to be mayors and council presidents. Leading elected governments with a larger proper budget instead of CDF can prepare them for executive responsibilities at the state and federal levels. With local elections, our parliament and legislatures can be resized, with fewer non-executive lawmakers but more select committees and longer sessions so that all political talents are well placed. This however cannot happen without decentralisation for states to be compensated with new domains like education, health, transportation and housing that they are happy to let local authorities be elected and empowered. The need for decentralisation and local elections is particularly important for the three federal territories which have not even elected state-level governments and Sabah and Sarawak which are so large in area and diverse in composition that their divisions (abolished now in Sabah) deserve to be treated like states within the two regions. Retaining status quo, on the other hand, prevents our political elites from growing and performing in leading the nation, states, divisions and municipalities, and confines them as welfare and finance officers of their constituencies. This in turn makes a huge difference of being in the government and being in opposition, sewing the seed for defection for some.

4.6.5 Equality before the Law and State Apparatus

One key benefit to be with the Federal Government is the perceived impunity from prosecution or conviction for crimes or misconducts, while a substantial price to be with the opposition is the perceived risk to be a victim of selective prosecution and politically motivated detention and harassments. Empirical evidences suggest in at least four episodes of defections that changed government involved lawmakers who were or had been detained, charged or acquitted of charges. In the first episode, before the PBS-led Sabah State Government collapsed in 1994, Jeffrey Kitingan, the powerful brother of PBS president Chief Minister Pairin Kintingan was detained under the Internal Security Act (ISA) for two years over alleged separatist activities. Many believed his release by Prime Minister Mahathir Mohamad before the election was a deal for him to be a bridge between PBS and the Federal Government. Jeffrey, who was one of the 25 PBS elected representatives, later joined 19 others to defect from PBS to form new parties to join BN. (Chin, 1994) In the second episode, two of the three defectors from PH’s forerunner, Pakatan Rakyat (PR), that caused the collapse of its state government in Perak were charged with corruption months before their defections. Incidentally, the duo – executive councillors in the ousted government - were acquitted a year after their defection. (Looi, 2010) In the third episode, one of the two PH defectors that brought down the PH state government in Perak was charged with raping his Indonesian maid in August 2019. The ex-executive councillor who subsequently went on leave defected to be an independent in March 2020. His trial at the high court started in December.

50 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

In the final episode, former Chief Minister Musa Aman was slapped with 46corruption and money-laundry charges in in November 2018 and March 2019 after BN’s loss of national power. After the Prosecution withdrew all charges on him on 9 June 2020, three months after UMNO returned to national power as part of the new PN coalition. (Karim, 2020) Before end of July, Musa Aman succeeded to engineer the exit of 13 ADUNs in the Warisan-led Government – including 12 ex-BN lawmakers who defected after BN’s defeat and caused the snap poll. (Hasnan, 2020) Except for the third case which is still on-going, some correlations may be easily drawn between one’s acquittal and being in government and vice versa. As much as the decisions made by the Court, the Attorney-General’s Chambers (AGC) or the Home Minister may be perfectly undisputable, the correlations would be noticed by many politicians and considered in deciding their party affiliation, for at least three reasons besides the public confidence in judiciary independence. First, as prosecution is controlled by Attorney-General who serves as the Government’s counsel, selective prosecution can never be discounted due to conflict of interest. Second, the Malaysian Anti-Corruption Commission (MACC) is answerable to the Prime Minister, and not the Parliament or some independent body. Third, detention without trial and Emergency Powers have been and can be used as tools to crack down on political dissidents and opposition. As long as equality before the law and state apparatus is not ensured, there would be a politico-legal premium for a politician to be with the federal government than to be in the opposition.

51 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

5 Recommendations for Malaysia

5.1 Objectives and Goals

We hold that the two objectives that commonly dominates the mind of opponents to party hopping – restoration of voters’ control of the mandate given to elected representatives and restoration of balance of power on election night – should be broadened to having a vibrant parliamentary democracy with vigorous programmatic competition. In other words, we should not aim to stop party hopping at the expense of parliamentary functions. Instead, having accountable representatives should be the most basic goal and a key instrument in our pursuit of political stability, programmatic competition and vibrant legislatures.

The guiding goals in thinking and designing remedies to party hopping should then be, in descending order,

−− Effective legislative oversight; −− Meaningfully-differentiated parties; −− Stable governments; and −− Accountable representatives.

5.2 Specific Recommendations

The four goals articulated above lead us to go beyond the standard remedies of Anti-Hopping Law (AHL) and Recall Election Law (REL) and into Confidence and Supply Agreement (CSA), and six other institutional reforms necessary to reduce or remove incentives for party hopping.

5.2.1 Recall Election Law (REL) under FPTP

To simultaneously hold elected representatives accountable and allow room for party system to evolve and stabilize, recall election is the best remedy for FPTP. It can punish elected representatives who change party or coalition affiliation against the wish of their constituents while leaving untouched those who do so with the consent or even blessing of their constituents. The concern that REL would take a much longer time than AHL to cause a by- election – 234 days for Taiwan’s Han Kuo Yu as compared to 52 days of Kelantan’s Nordin Salleh – is legitimate (Lim, 2020) but must not be taken as the absolute consideration. AHL can indeed cause immediate suspension which freezes balance of power -- as in the case of Tamil Nadu’s AIADMK rebels in 2017, but the litigation also caused the by-elections to be held two years later – but the price for that is the loss of legislative oversight. The time from defection to by-election after a successful recall can be significantly shortened than Taiwan if we model its REL with substantial modifications. We recommend a limited version of citizen-initiated Recall Election mechanism taking a leaf each from Taiwan and UK. We do not recommend the Californian model of combining recall election and by-election, not only because it causes complications for both parties and voters, but also because it requires more modifications to

52 How To Deter Party Hopping in Malaysia? An Exploration of Remedies the current system and provides more excuses to block the introduction of recall elections.

Scope

A federal REL will be needed to cover MPs while state RELs for state assemblypersons. They can be introduced separately.

Ground

Only three grounds are permitted: (a) changing party or coalition affiliation – including independents joining a party – after election;

(b) conviction for any non-compoundable offences; and (c) absence in the House for more than 80% of sitting days in a consecutive period of six months, leave permission by Speaker notwithstanding.

The first ground is to curb party-hopping while the second and third grounds, inspired by the British model, is to transfer discretionary power of letting off law-breaking or truant lawmakers from judges or speakers to voters. We do not recommend broad or unlimited grounds after considering the experience of retaliatory recalls in Taiwan and also in Wisconsin, United States. (Judge 2012:741)

Time restriction

No recall on the first ground can be initiated six months before the term of the Parliament or the State Legislative Assembly expires. No recall on the second and third ground can be initiated two and a half years before the term of the Parliament or the State Legislative Assembly expires.

As no by-election can be held two years before the expiry of the Parliamentary or Legislative term, this would ensure a by-election to be held for any successful recall on the second and third ground. For the first ground, as it is important to preserve the balance of power, voters should be allowed to vacate their representative’s seat up until the last months of the Parliamentary or Legislative term even though no by-election can be held.

Prohibition for Re-contestation and New Recall

The recalled representative is prohibited from standing in the same constituency in the by-election. S/he will however not be prohibited from standing in the next parliamentary or state general election. As recalls are prompted by the MP’s or the state assemblyperson’s action, the process cannot be abused without the MP or the state assemblyperson’s wilful participation, hence, no restriction on new attempts is proposed.

Procedure

A petition can only be initiated by 1% of registered voters in a constituency and a recall election will only be held if the petition is supported by another 10% of voters within 8 weeks after the acceptance of the petition by the Election Commission (EC).

53 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Finally, a recall petition is successful only if it passes both thresholds:

(a) more consenting votes than dissenting; and (b) consenting votes exceed more than 50% of registered voters or the number of votes won by the incumbent in the last election, whichever the lower.

The higher alternative passing thresholds can prevent abuse and ensure legitimacy of the recall – no incumbent can be recalled if half of the electorate disagree or if less voters than those who voted for him/her disagree.

The duration from the submission of a recall petition to a recall election depends mainly on the period for collecting the 10% supporting signatures and the periods for the EC to verify signatures, both of which in turn depends on the expected size of electorate. As a base time, we will take the average of 109,768 voters for a parliamentary constituency in Selangor in the 2018 general election, and 10% voters and 1% voters are respectively 10,977 and 1,098. It is reasonable for the EC to be given three weeks and one week to verify the signatures. As for collection of 10% supporting signatures, a popular cause may be able to meet the requirement in one week. Hence, we propose for only 8 weeks as it is not the purpose of the REL to encourage frivolous attempts. If voters feel strongly about recalling an elected representative, collecting signatures from some 11,000 voters to pass the second threshold of 10% may be met even within one week. This will cause a legally maximum period from submission of a recall petition to a recall election at 14 weeks, but may be realistically shortened to seven weeks for a popular cause. (Table 5.1)

Table 5.1 Legal and Realistic Estimates of Time Required for a Successful Recall Election with 1% and 10% Initiating and Supporting Thresholds

Legal Maximum Realistic Estimates Steps Action Time Limit from of time for a popular the earlier step Recall Election

Submission of the 1% Initiators initiating signatures

Verification of the 1% EC 1 week 1 week initiating signatures

Submission of the next 10% supporting Initiators 8 weeks 1 week signatures Verification of the next 10% supporting EC 3 weeks 3 weeks signatures

Conduction of Recall EC 2 weeks 2 weeks Election

Total time before 14 weeks 7 weeks causing vacancy

54 How ToTo Deter PartyParty Hopping in Malaysia?Malaysia? An Exploration of Remedies

5.2.2 Anti-Hopping Law (AHL) for CLPR Lawmakers in Mixed Member Majoritarian (MMM)

We recommend AHL only for lawmakers elected under Closed-List Proportional Representation (CLPR) and not under First-Past-The-Post (FPTP). This means AHL should come in a larger package of constitutional amendments which include a change of electoral system. Further we recommend retention of current FPTP seats alongside creation of CLPR seats on a parallel basis to constitute a Mixed Member Majoritarian (MMM) system as in Japan, Taiwan, Italy and Mexico instead of a full CLPR as in South Africa or a Mixed Member Proportional (MMP) system as in New Zealand.

Recommendation against AHL under FPTP

We recommend against AHL under FPTP on two grounds.

First, it will not address Malaysians’ anger and frustration over collapse of pre- election coalition governments which drives the call for AHL now. A standard AHL cannot punish parties for leaving the coalition they are members of during election. As a matter of fact, as Malaysian parties allow their party label to be used by non- members especially candidates from allies, AHL may not even hold for these non- members. The alternative, stretching the AHL to cover parties’ coalition membership, would turn pre-election or permanent coalitions into super-parties, and likely result in domination by the largest party. In a coalitional dispute, a small party might be threatened with expulsion from coalition, which would vacate all its legislative seats for contestation by its stronger allies. This clearly can cause a worse concentration of power than we have now.

Second, AHL may produce rubber-stamp legislatures more subservient to the Executive than what Malaysians have already seen. As a tool to strengthen leader’s control over lawmakers, it is a double-edged sword and may cost democracy dearly. While it can curb defection, fragmentation and splintering when parties are weak, it can also produce unchecked power for the Executive when the government commands a solid majority. With an AHL, backbench revolt is simply impossible. The unintended consequence of creating subservient legislatures should then be

options are available.

Recommendation for AHL under CLPR

We recommend creating CLPR seats equipped with an AHL because both are compatible and reinforce party-based representation. This combination does not encounter the two challenges faced by an AHL under FPTP. First, if all or a sizeable percentage of legislative seats are CLPR, hung parliaments and subsequently post- election coalition governments are likely the rule than the exception, and existence

CLPR with AHL give much power to party leaders over their representatives, rubber- stamp parliaments/legislatures are unlikely with post-election coalition governments, as a Prime Minister/Chief Minister who tries to bulldozer unpopular policies through the parliament/legislature may simply be ousted if some coalition partners pull out.

oversight.

55 How TToo Deter PPartyarty Hopping in MalMalaysia?aysia? An Exploration of Remedies How To Deter Party Hopping in Malaysia? An Exploration of Remedies HowHow To T Detero Deter Pa Prtyarr tytyHopping HoppingHopping in inMalin MalMalaysia?aysia? An An Exploration Exploration of ofRemedies Remedies

How To Deter Party Hopping in Malaysia? An Exploration of Remedies Recommendation for MMM RecommendationRecommendation for for MMM MMM

RecommendationCLPR can be introduced for MMM in three ways: CLPRCLPR can can be be int introducedroduced in in th threeree w awys:ays: − as CLPR, without any FPTP element, as in South Africa; − − asas CLPR, CLPR, without without any any FPTP FPTP element, element, as as in in South South Africa; Africa; CLPR can be introduced in three ways: − as MMP, in which CLPR seats are allocated on a compensatory basis to FPTP − − asas MM CLPR,MMP,, Pinin,, in in withoutwhich which CLPR anyCLPR FPTPseats seats element, a r aer eallocated allocated as in onSouth on a acompensato compensatoAfrica; ryr basisy basis to to FPTP FPTP seats, so that the total seats (both FPTP and CLPR) allocated to a party will be seats,seats, so so that that the the total total seat seats (boths (both FPTP FPTP and and CLPR) CLPR) allocated allocated to to a apa partyrty will will be be − aspropo MMrtionalP, in which to the CLPR CLPR seats votes a rite rallocatedeceives, as on in a Newcompensato Zealand;ryan basisd to FPTP prpoporoportionalrtional to to the the CLPR CLPR votes votes it itrecei receives,ves, as as in in New New Z ealand;Zealand;anand d seats, so that the total seats (both FPTP and CLPR) allocatedan tod a party will be − as MMM, in which CLPR seats are allocated based on CLPR votes, in parallel − − aspas rMMM,opo MMM,rtional inin inin which whichto the CLPR CLPR seats seatsvotes a ritaer reallocatedecei allocatedves, as based basedin New on on ZCLPRealand; CLPR v otes, vanotes,d inin inin parallel parallel existence with FPTP seats, as in Japan, Taiwan, Italy and Mexico. existenceexistence with with FPTP FPTP seats, seats, as as in in Japan, Japan, T aiwan,Taiwan, Italy Italy and and Mexico. Mexico. − as MMM, in which CLPR seats are allocated based on CLPR votes, in parallel existence with FPTP seats, as in Japan, Taiwan, Italy and Mexico. We recommend retention of FPTP seats, instead of a complete replacement of FPTP WWe reec recommommendend re rteetntentiioniion of of F P FTPPTP se saetast,, siin,, isintsetadead of of a caomp complletlleet ree rpellpalclaemcementent of of F PT FPTP P with CLPR, so that popular incumbents still stand a chance to get elected under withwith CLPR, CLPR, so so that that popular popular incumbentsincumbents incumbentsincumbents still still stand stand a achance chance to to get get elected elected under under WFPTPe rec eommven ief ndthe rye aternte dionropp ofe FdP asTP ca sendatisd, atesinste bady pofa raty c leaompders.lete rCLepPRlac emwille lenta ofve FpPTartPy FPTPFPTP ev eevne niif itifh tehye ayr aer de r dopproppede das as ca candndiidiatesidates by b py a pratyrty lealea lealeaders.ders. CL CLPRPR will will lele lealevaev pe a pratyrt y withleaders CLPR, with so ab sthatolute popular power iincumbentsn deciding th estill se qustandence a of chance candid atesto get and elected may pr underoduce lealealealeadersders wit with ahb asboslloultelute po powerwer iin i i dneci decidiidngiing th teh see seququenecence of of ca candndiidiatesidates and and m maya pyr poduroducec e FPTPpowe refulve npa ifr tiesthey that are dsuropprviveed onas communalcandidates suppoby partyrt andlead suppers. CLressPR dissents will leave within party powepowerfulrful pa partiesrties that that su survirvviev eon on communal communal suppo support randt and supp suppressress dissents dissents within within leathed persart wity. Ihn athbes owluoterst po scewernari in o,deci sudcihng p athreties se qumaeyn cefo rofm caa sndoliiddates cartel and to m monopoay produlisece thteh pe a pratyrt. yIn. I nth teh we owrstorst sce scenarinario, o, su scuhc hp a pratiesrties m maya foy formrm a sao sliliodlili dca cartelrtel to t omonopo monopoliseliseliselise poweand sharfulr epa Erxtiesecuti thatve powersurviv eand on disablecommunal the suppolegislaturt andre. With supp FPTPress dissentsretained, within some andand sha sharer eE xEecutixecutivev epower power and and disable disable the the legislatulegislatu legislatulegislature.re. With With FPTP FPTP retained, retained, some some tlawmahe parktyers. In will the hwaovrste room scen forari o,autonomous such parties actions may fo –rm including a solid ca stagingrtel to monopo backbenchlise lawmalawmalawmalawmakerskers will will h a hvaev reoom room for for autonomous autonomous actions actions – –includingincluding includingincluding staging staging backbench backbench andrevolts sha –re which Executi arvee necessa power andry for disable effecti theve checklegislatu andre. balance With FPTP on the retained, Executi someve. revrevoltsolts – –which which a raer enecessa necessaryr fory for ef effectifectivev echeck check and and balance balance on on the the E xEecutixecutive.ve. lawmakers will have room for autonomous actions – including staging backbench rWeveolts further – which recommend are necessa MMMry insteadfor effecti ofv MMe checkP, when and CLPR balance seats on athere addedExecuti tov e.the WWe efu furtherrther recommend recommend MMM MMM insteadinstead insteadinstead of of MM MMP,, Pwhen,, when CLPR CLPR seats seats a r aer eadded added to to the the existing FPTP seats, because the logic of proportionality in MMP necessitates AHL existiexistingng F PTP FPTP seats seats,, b,, eca becauseuse th teh lelog llogicicic ic of of p r poporoportirontionalityality iin i i nMM MMP Pn ecessitates necessitates AH AHL L Wone FPTP further law recommendmakers too .MMM We con insteadcur wit ofh t hMMe logP, icwhen of New CLPR Zeala seatsnd’ sa AHLre added in co vtoeri theng ono nFPTP FPTP lawlaw lawlawmmakaerskers too too. W. We ceon concurcur wit with hth teh lelog llogicicic ic of of New New Z eala Zealandn’’sd ’’AHLs AHL inin in in co cvoeriveringn g existiboth CLngPR FPTP and seats FPTP, b lawecamuasek ersthe b logecaicu ofse p allropoowirngtion dalityefecti inon MM ofP FPTP necessitates lawmakers AH –L bobothth CL CLPRPR and and FPTP FPTP lawlaw lawlawmmakaerskers b eca becauseuse all allowiowingng d e dfeectifectionon of of FPTP FPTP lawlaw lawlawmmakaerskers – – oevne FPTPn tho ulawghm thaekyers ma tyoo b.e W electee condcur on wit persh tohneal log micand ofate New – Zwilleala distond’sr tAHL prop ino rctioovnaliteringy evevene nth tohuoguhg hth tehye my maya by e b electee elected do n o np ers personoalnal m mandandateate – –will will d isto istodistoistort rpt r porpooprotirotinalitonality y boandth de CLfPReat athend purposeFPTP law ofm ahkaersving b ecaMMuPse. How alloevwiengr, an de AHLfecti onon ofFPTP FPTP lawma lawmkaerskers will – andand de defeatfeat the the purpose purpose of of h ahvingaving MM MMP. PHow. Howevevere,, anr,, an AHL AHL on on FPTP FPTP lawmalawma lawmalawmakerskers will will evgiveen too tho umughc thh powey meary t ob epa electerty ledade onrs p ersando mnala ym raesndulatet in –a willdys funcdistotironat prol ppaorrlitiamonalitenty. giigveiiv tooe too mu muchc hpow powere tro t opa partyrty lle laledeadersrs and and m maya ryes resulult iitn i i na da ys dysfuncfunctionationall pall parlirliamamentent. . and defeat the purpose of having MMP. However, an AHL on FPTP lawmakers will grecommendive too muc againsth power MM to paP, retyven lea thoughders and MMP may can res ulensut in rae d seat-ysfuncvotetiona propol parrlitionalitamenty. recommendrecommend against against MM MMP,, Pe,,v eenven though though MMP MMP can can ensu ensurer seat-e seat-votevote p r poporoportionalitrtionality. y. If a high degree of proportionality is desired, then the MMM introduced can have If Ifa ahigh high deg degreeree of of p rpoporoportionalityrtionality isis is is desi desired,red, then then the the MMM MMM intint intintroducedroduced can can h ahvaev e r50%ecommend or even againstmore of MMCLPRP, e seats.ven though MMP can ensure seat-vote proportionality. 50%50% or or ev evenen mo morer eof of CLPR CLPR seats. seats. If a high degree of proportionality is desired, then the MMM introduced can have 50%Detailed or ev Recommendationsen more of CLPR seats. for MMM, AHL and REL DetailedDetailed Recommendations Recommendations for for MMM, MMM, AHL AHL and and REL REL

DetailedWe recommend Recommendations an MMM with for the MMM, following AHL and featu RELres: WWe erecommend recommend an an MMM MMM with with the the following following featu features:res: − retention of the existing FPTP seats, equipped with an REL; − − retentionretention of of the the existing existing FPTP FPTP seats, seats, equipped equipped with with an an REL; REL; We recommend an MMM with the following features: − addition of CLPR seats in statewide constituencies, equipped with an AHL; − − additionradditionetention of of ofCLPR CLPR the seatsexisting seats in in statewideFPTP statewide seats, constituencies, constituencies, equipped with equipped anequipped REL; with with an an AHL; AHL;and − the ratio of FPTP :CLPR seats at 2:1 at the introductory stage. − − theadditionthe ratio ratio of of FPT CLPRFPTP :PCLPR :seatsCLPR seats inseats statewide at at 2:1 2:1 at atconstituencies, the the int introductoroductor yequippedr stage.y stage. with an AHL; − the ratio of FPTP :CLPR seats at 2:1 at the introductory stage. With one-third of seats protected from party hopping, and the remaining two-third WithWith one-thi one-thirdr dof of seats seats p rpotectedrotected fr omfrom pa partyrty hopping, hopping, and and the the remaining remaining two-thi two-thirdr d of seats equipped with a recall election mechanism, voters can expect to enjoy the ofof seats seats equipped equipped with with a raecall recall election election mechanism, mechanism, voters voters can can expect expect to to enj enjoyo they the With one-third of seats protected from party hopping, and the remaining two-third of− seatsStable equipped political with par tiesa recall with election substanti mechanism,ve programmatic voters candiffe expectrences to enjoy the − − StableStable political political pa partiesrties with with substanti substantivev ep rpogrammaticrogrammatic dif diffefreencesrences; − Independently and critically thinking lawmakers representing FPTP constituencies − − IndStableIndepeepnde ndpoliticalenetlyntly and a ndpa critically rcriticallyties with th tiihn substantiikiinngking lawlaw lawlawmvmaek aperskrersogrammatic re rperpeseresentinngti difng FPTP f FPTPerences con constitstitueuneciencies;s − Stable post-election coalition governments which may still collapse if coalition − − StaIStandbleelebple le poe nd post-electiest-electintly andonon critically co calitioalition onth gin o gkivoerngvernm lawnmenmetsnats k wers hwicich richeicp hmr esemaya stillnyti stillng c oFPTP cllallaollallapse pcseon iif stiticifo calitiuoealitinocieno ns partners have substantial programmatic differences, but not due to en bloc papratnrtersners h ahvaev es ubsubstantialstantial p rporgraogrammmmaticatic d iidffiieffreernecesnces,, b,, utbut no not dt uedue to t oe ne nb lolobloloc c − Stadefectionble post-electi of lawmaonk cersoaliti wantingon gov toer nmbe ekingmants whkicersh may still collapse if coalition dedefectionfection of of lawma lawmakerskers wanting wanting to to be be kingma kingmakerskers. partners have substantial programmatic differences, but not due to en bloc defection of lawmakers wanting to be kingmakers

56 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Under this MMM,

− Voters would have two ballots, one for FPTP and another for CLPR; − FPTP elections will be held in respective constituencies with no changes to the current electoral process; − CLPR seats will be filled under the following arrangements: • Every state as a constituency so that no constituency delimitation is necessary; • Gender and some other demographic quotas on candidate lists, so that parties have to ensure some minimum diversity in their line-up; • Freedom for allied parties to present a common list in some states and separate lists in other states; and • Largest Remainder formula with Hare Quota (1/number of seats) in allocation of seats, as this is the most intuitive formula to ease comprehension and build trust.6 − CLPR seats will be vacated under the AHL when a lawmaker leaves or is expelled from the party/coalition s/he represents in election. It will not apply upon dissolution of a party or coalition, merger of parties, or if a lawmaker resigns from his/her party upon his/her election as speaker.

Implementing this two-ballot MMM system will require amendment of Article 116 of the Federal Constitution for parliamentary elections and that of Article 117 of the Federal Constitution and relevant provisions in the state constitutions for state elections. Articles 116 and 117 dictate that lawmakers must be elected under single-member constituencies, hence preventing CLPR which needs multi-member constituencies.

Nevertheless, single-ballot MMM may be attempted at the state level, if FPTP votes are aggregated to allocate additional seats to the parties. Members serving the entire state through these additional seats are known as “nominated members”, a feature already introduced in Sabah, Terengganu and recently Pahang but these are currently government appointees and not CLPR. (Wong, 2020b) Penang has announced its intention to introduce “Top-up Women-Only Additional Seats” (TWOAS), which is CLPR based on FPTP vote share. As it is a top-up measure to remedy women under- representation, this one-ballot MMM will however be operational only when the percentage of women lawmakers in the state assembly fall below 30%. (Mok, 2020b)

5.2.3 Freedom to Recontest after Resignation

6 If there are 10 seats, then the quota is 1/10 or 10% of all valid votes, and every party that wins a full quota will get 1 seat, and any remaining seats will go to parties with the largest remaining quota. If Parties A, B, C and D respectively win 42%, 31%, 18% and 9% of votes, they get 4.2, 3.1, 1.8 and 0.9 Hare Quotas. Parties A, B and C will be first given 4, 3 and 1 seats for their full quota. The last two seats will be given to Parties D and C, which have the largest remainder quotas of 0.9 and 0.8 respectively. This will yield a very proportional allocation: A (4 seats for 42% of votes), B (3 seats for 31%), C (2 seats for 18%) and D (1 seat for 9%). For a good introduction to the debate on quotas, see Gallagher (1992).

57 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

mandate in by-election, whether or not it is due to a change of party or coalition affiliation. Allowing voters to give a new mandate when the old mandate is in doubt must not be seen as a waste of public fund because it is more costly to have lawmakers and government deemed illegitimate in the eyes of the public. If resignation by an incumbent is seen as an abuse by voters, they will duly penalise the incumbent in by-election.

5.2.4 Confidence and Supply Agreement (CSA)

We recommend CSA as the standard practice when governments do not have a solid legislative majority to survive confidence and supply votes. This will reduce instances of party defections driven by merely the reward to be kingmakers. This can immediately stablise governments without any changes in constitutions and laws. If the CSA can close the differentials between government and opposition lawmakers, then it will also reduce the incentives for resource-driven defection of opposition lawmakers.

5.2.5 Legislative Reform to Empower Non-Executive Lawmakers

We recommend the following, at both the federal and state levels, where applicable: −− Longer duration of parliamentary and legislative sittings, that MPs should meet around 135-150 days a year; −− Select committees to ensure both every ministry/executive portfolio is scrutinised by one committee and every non-Executive lawmaker sits on at least one committee; −− Recognition of Shadow Cabinet with access to key government information; −− An effective avenue for private member’s bills comparable to the balloting mechanism in the UK House of Commons; −− Multipartisan agenda setting including the provision for non-government business days; and −− Parliament’s own bureaucratic service including a strong research arm to assist all MPs.

5.2.6 Limiting ‘Expanded Payroll Vote’

We recommend the following: −− Limiting the total of federal government frontbenchers – ministers, deputy ministers and parliamentary secretary (if any in the future) – to 50 or not more than 20% of the members of Dewan Rakyat (currently 222), whichever is lower. This will cap it at 44 now. Notably, such limit is already provided in state constitutions and only absent at the federal level. −− Barring all elected representatives from holding any paid position in any agency or company owned or controlled by the Federal Government, any State Government or any Local Authorities.

58 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

5.2.7 Equitable Constituency Development Fund (CDF)

We recommend legalised provision of equitable and well-regulated Constituency Development Fund (CDF) for all lawmakers at both the federal and state levels. The equitable provision of CDF recently introduced in Perak should go beyond an executive decision of the Menteri Besar and be legislated. (Prakash, 2020)

5.2.8 Decentralisation and Elected Local Governments

We recommend the following: −− Decentralisation for some federal powers to be transferred to the states so that the state lawmakers can have more rooms for legislation and policy formulation. Without this, state lawmakers will have little space for programmatic competition. −− Elected governments for three Federal Territories, divisions for Sabah and Sarawak and local authorities in West Malaysia. This will make local governments more responsive and reduce the demand on both federal and state lawmakers for constituency service and funding. Divisions in Sabah and Sarawak are specifically mentioned here because the two Borneo states are so wide and diverse that decentralisation may be more meaningful and effective if powers are transferred to the larger units of divisions than municipalities and districts.

5.2.9 Equality before the Law and State Apparatus

We recommend the following: −− A Public Prosecution Office independent from the Attorney-General’s Chambers (AGC); −− Making the Malaysia Anti-Corruption Commission answerable to the Parliament instead of Prime Minister’s Department; −− Expansion of parliamentary privileges to cover both federal and state lawmakers from detention without trials; and −− Better safeguards to protect political dissidents from persecution under Emergency.

59 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

5.3 Options and Actors at a Glance

Table 5.2 Implementing Remedies to Party Hopping at the Federal and State Levels

Tier of Government Federal Government State Government Remark Requiring Amendment to Federal/ Yes No Yes No State Constitution?

1. Recall Election Law (REL) under States can introduce REL X X FPTP without federal approval.

States can only introduce 2. Anti-Hopping Law (AHL) for CLPR one-ballot MMM through Lawmakers in Mixed Member X X creation of “nominated Majoritarian (MMM) seats” indirectly elected under CLPR. 3. Freedom to Recontest after X X Resignation 4. Confidence and Supply X X Agreement (CSA) 5. Legislative Reform to Empower X X Non-Executive Lawmakers

Even without a constitutional amendment, 6. Limiting ‘Expanded Payroll Vote’ X federal government can also downsize its cabinet.

a. Capping federal frontbenchers to 50 or 20% X of MPs b. Barring lawmakers from remunerable appointments X X in statutory bodies or GLCs This should be legislated 7. Equitable Constituency X and not introduced as an Development Fund (CDF) executive order.

(8a) Decentralisation X

Local elections can be introduced in Sabah and (8b) Elected Local Governments X X Sarawak without federal consent.

9. Equality before the law and state X apparatus

Notwithstanding Malaysia’s centralised federalism, most of the reforms outlined here can happen at both the federal and state levels independently.

Except for introduction of two-ballot MMM, decentralisation, local elections in Peninsular Malaysia and equality before the law which requires a federal initiative, all reforms can be initiated by individual states.

60 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Five of these reforms can be introduced at the federal and/or state levels through legislations without constitutional amendments, namely, legislative reform, barring state assemblypersons from holding remunerable political appointments, equitable CDF and local elections in Sabah and Sarawak.

Of course, even before going through constitutional amendments, the federal government can signal its commitment to rule or law and downsize its frontbench.

Finally, CSA can be signed by government and opposition parties at the federal level or in any state without even having to pass any laws.

This shows that, even if reforms like a federal REL, two-ballot MMM and decentralisation cannot take place without a cross-party consensus to provide a two-third majority in the Parliament, and may need at least a general election to change the political landscape, other low-lying fruits are available.

Because party hopping can be remedied with so many options, what ultimately determines whether remedies can be implemented is the political will, not of politicians, but of the Malaysian public.

61 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

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Alnaa Alman. (2020, August 11). Read Federal Constitution in entirety, anti-hopping law opponents told. Free Malaysia Today. https://www.freemalaysiatoday.com/category/nation/2020/08/11/read-federal- constitution-in-entirety-anti-hopping-law-opponents-told/ Astro Awani (2020, December 14). 50 percent of people want Anti-Party Hopping Law – CENT-GPS survey. https://www.astroawani.com/berita-malaysia/50-percent-of-people-want-antiparty-hopping-law- centgps-survey-273077

Bernama. (2020a, December 10). Penang introduces ‘Twoas ‘ to achieve 30 per cent women representation in state assembly. https://www.bernama.com/en/news.php?id=1910921

Bernama. (2020b, December 11). Perlis Govt to provide allocations to Opposition Assemblymen. The Edge Markets. https://www.theedgemarkets.com/article/perlis-govt-provide-allocations-opposition- assemblymen Bersih 2.0, GBM and ABIM (2020, June 10). A 6-Point Multiparty Deal to Reconfigure Politics and End Endless Machinations. Bersih. https://www.bersih.org/press-statement-from-bersih-2-0-gbm-and- abim-10-june-2020-a-6-point-multi-party-deal-to-reconfigure-politics-and-end-endless-machinations/ Borneo Post. (2020a, March 9). Four Perak PH assemblymen quit party, support Perikatan Nasional. https:// www.theborneopost.com/2020/03/09/four-perak-ph-assemblymen-quit-party-support-perikatan- nasional/ Cent-GPS (2020, December 14). Nationwide Survey Shows Large Acceptance For Implementation of Anti- Hopping Law. [Press Release] Cowley, P. (2016, May 16). Jeremy Corbyn and the Labour whip. Revolts: Philip Cowley and Mark Stuart’s Research on Parliament. http://revolts.co.uk/?p=932

63 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Crouch, H. (1992). Authoritarian Trends, the UMNO Split and the Limits to State Power. In J.S. Kahn and F.K.W. Loh (eds) Fragmented Vision: Culture and Politics in Contemporary Malaysia. Allen & Unwin. Dorall, A. (2020, October 25). Here’s What A “Confidence And Supply Agreement”, That MUDA Wants Instead Of A State Of Emergency, Actually Means. The Rakyat Post. https://www.therakyatpost. com/2020/10/25/heres-what-a-confidence-and-supply-agreement-that-muda-wants-instead-of-a- state-of-emergency-actually-means/ Economic Times. (2018, October 25) AIADMK MLAs disqualification: This is what it means for Tamil Nadu and Palaniswami govt. https://economictimes.indiatimes.com/news/politics-and-nation/18- aiadmk-mlas-disqualification-this-is-what-it-means-for-tamil-nadu-and-palaniswami-govt/ articleshow/66358380.cms

FMT Reporters. (2017, March 20). Sarawak CM: RM5 million development fund for BN reps only. https:// www.freemalaysiatoday.com/category/nation/2017/03/20/sarawak-cm-rm5-million- development-fund-for-bn-reps-only Geraldine, A. (2020, June 15). Two UPKO assemblymen quit party. New Straits Times. https://www.nst.com. my/news/politics/2020/06/600696/two-upko-assemblymen-quit-party Hasnan, H.A. (2020, July 23) Musa Aman tampil bukti dapat sokongan 33 ADUN. Astro Awani. https://www. astroawani.com/berita-politik/musa-aman-tampil-bukti-dapat-sokongan-33-adun-253383 Hioe, B. (2017, December 18). Opinion: Huang Kuo-chang Survives Recall Vote and Faces Uncertain Future. The News Lens. https://international.thenewslens.com/article/85720 Horton, C., & Chang, A. C. (2020, June 6). Voters in Taiwan Oust a Pro-China Mayor. New York Times. https:// www.nytimes.com/2020/06/06/world/asia/taiwan-recall-mayor.html Horowitz, D.L. (2018, June 22) Interethnic Vote Pooling, Institutional Frailty, and the Malaysian Elections of 2018. Int’l J. Const. L. Blog. http://www.iconnectblog.com/2018/06/interethnic-vote-pooling- institutional-frailty-and-the-malaysian-elections-of-2018/ Huang, H. P., Tsai, C. H., & Chung, J. (2020, November 21). Taoyuan city councilor recall vote authorized. Taipei Times. https://taipeitimes.com/News/taiwan/archives/2020/11/21/2003747314 Karim, K.N. (2020, June 9). Musa Aman freed of all 46 corruption, money-laundering charges. New Straits Times. https://www.nst.com.my/news/crime-courts/2020/06/599078/musa-aman-freed-all-46- corruption-money-laundering-charges

Kiniguide. (2020, November 2). A closer look inside the ‘MP allocations’ cookie jar. Malaysiakini. https:// www.malaysiakini.com/news/549075 Knight, S. (2016, May 23). Enter Left. New Yorker. https://www.newyorker.com/magazine/2016/05/23/ the-astonishing-rise-of-jeremy-corbyn Lee, S. (2018, October 11). Labuan MP quits UMNO to join Warisan. The Star. https://www.thestar.com.my/ news/nation/2018/10/11/labuan-mp-quits-umno-to-join-warisan Lim, C. H. (2020, June 29). A case for anti-hopping law. Malaysian Insight. https://www.themalaysianinsight. com/s/257203 Looi, S. (2010, April 23). Ex-Perak PKR exco members acquitted of graft charges (Updated). The Star. https://www.thestar.com.my/news/nation/2010/04/23/experak-pkr-exco-members-acquitted-of- graft-charges-updated Malaysiakini. (2018, June 24). Bagan Serai MP quits UMNO, supports Dr M. https://www.malaysiakini.com/ news/431025 Malaysiakini Team. (2020, November 26). After extra goodies announced, Budget 2021 passes first vote. Malaysiakini. https://www.malaysiakini.com/news/552643 Maxon, A. (2019, September 4). NPP picks academic to replace Kawlo following arbitration. Taipei Times. https://www.taipeitimes.com/News/taiwan/archives/2019/09/04/2003721690 McGuinness, W. (2020, August 14). Obtaining a comprehensive list of coalition agreements and support agreements since 1996. McGuinness Institute. https://www.mcguinnessinstitute.org/civicsnz/ obtaining-a-comprehensive-list-of-coalition-agreements-and-support-agreement-documents- since-1996/

64 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

Mohamed Reza Abdul Rahim. (2020, June 12). Freedom of association: From Nordin Salleh to Khaliq Mehtab. Malay Mail. https://www.malaymail.com/news/what-you-think/2020/06/12/freedom-of- association-from-nordin-salleh-to-khaliq-mehtab-mohamed-reza-bin/1874839 Mok, O. (2020, October 8). Penang drops for now motion to enforce anti-hopping law due to Covid-19. Malay Mail. https://www.malaymail.com/news/malaysia/2020/10/08/penang-drops-for-now-motion-to- enforce-anti-hopping-law-due-to-covid-19/1910753 Mok, O. (2020b, December 10). Penang mulls nominating women reps to meet 30pc gender equality quota in state assembly. Malay Mail. https://www.malaymail.com/news/malaysia/2020/12/10/penang- mulls-nominating-women-reps-to-meet-30pc-gender-equality-quota-in-st/1930684 Ng, X.Y. (2020, December 4). Faizal Azumu loses MB confidence vote, vows smooth transition. Malaysiakini. https://www.malaysiakini.com/news/553752 Nora Mahpar. (2020, August 10). Constitution amendment needed before enacting anti-hopping law, says minister. Free Malaysia Today. https://www.freemalaysiatoday.com/category/nation/2020/08/10/ constitution-amendment-needed-before-enacting-anti-hopping-law-says-minister/ Palansamy, Y. (2020, September 21). Lawyers divided over Nazri’s proposed law against party-hopping, some see need for constitutional amendment. Malay Mail. https://www.malaymail.com/news/ malaysia/2020/09/21/lawyers-divided-over-nazris-proposed-law-against-party-hopping-some-see- nee/1905032 Prakash, G. (2020, December 17). Perak DAP chief: History made with confidence-and-supply agreement with new MB. Malay Mail. https://www.malaymail.com/news/malaysia/2020/12/17/perak-dap- chief-history-made-with-confidence-and-supply-agreement-with-new/1932691 Relhan, V. (2017, December 6). The Anti-Defection Law Explained. PRS Legislative Research. https://www. prsindia.org/theprsblog/anti-defection-law-explained Select Committee on the Modernisation of the House. (2007). Modernisation of the House of Commons - First Report. UK House of Common. https://publications.parliament.uk/pa/cm200607/cmselect/ cmmodern/337/33706.htm Singh, H & Narayanan, S. (1989). Changing Dimensions in Malaysian Politics: The Johore Baru by-Election. Asian Survey, 29(5), pp. 514-529. http://www.jstor.org/stable/2644535 Strong, M. (2020, December 18). Young city councilor in south Taiwan city faces recall vote. Taiwan News. https://www.taiwannews.com.tw/en/news/4081263 Syed Jamal Zahiid. (2020, December 6). Johor MB from Umno calls Pakatan ‘strategic partners’ after Bersatu threatens takeover. Malay Mail. https://www.malaymail.com/news/malaysia/2020/12/06/ johor-mb-from-umno-calls-pakatan-strategic-partners-after-bersatu-threatens/1929404 Tan, T., Carvalho, M., Sivanandam, H. & Rahim, R. (2020, August 5). Lubok Antu MP says he switched allegiances to Perikatan to get more projects for his constituency. The Star. https://www.thestar. com.my/news/nation/2020/08/05/lubok-antu-mp-says-he-switched-allegiances-to-perikatan-to-get- more-projects-for-his-constituency Taylor, R. (2016, June 21). Cabinet collective responsibility: how it works, and why it survives. LSE Blogs. https://blogs.lse.ac.uk/brexit/2016/06/21/cabinet-collective-responsibility-how-it-works-and-why-it- survives/ UK Parliament. (nd). Recall of MPs (Change of Party Affiliation) Bill 2019-21. https://services.parliament.uk/ bills/2019-21/recallofmpschangeofpartyaffiliation.html Wong, C.H. (2020b, November 24). Why do we need non-constituency lawmakers? Malaysiakini. https:// www.malaysiakini.com/columns/552232 Zolgekar, K. (2019, November 4). Payroll Vote. Institute for Government. https://www.instituteforgovernment. org.uk/explainers/payroll-vote

65 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

STATUTE Malaysia

Constitution of the State of Kelantan

Constitution of the State of Penang

Constitution of the State of Penang (Amendment) Enactment, 2012 (Enactment A13)

Constitution of the State of Sabah

Constitution of the State of Sarawak

Enakmen Undang-Undang Perlembagaan Tubuh Kerajaan Kelantan (Bahagian Pertama) (Pindaan), 1991

Federal Constitution

Sarawak Constitution (Amendment) Ordinance, 1988 (ORD. 4/1988).

Sarawak Constitution (Amendment) Ordinance, 1994 (SWK. CAP. A20).

India

Constitution (Fifty-Second Amendment) Act, 1985

Constitution (Ninety-First Amendment) Act, 2003

Constitution of India

South Africa

Constitution Eighth Amendment Act of 2002

Constitution Fifteenth Amendment Act of 2008

Constitution Fourteenth Amendment Act of 2008

Constitution Ninth Amendment Act of 2002

Constitution of the Republic of South Africa, 1993 (No 200 Of 1993)

Constitution of the Republic of South Africa, 1996 (No 108 of 1996)

Constitution Tenth Amendment Act of 2003

Local Government: Municipal Structures Act, 1998 (No 117 of 1998)

Loss or Retention of Membership of National and Provincial Legislatures Act (No 22 of 2002)

New Zealand

Constitution Act 1986

Electoral (Integrity) Amendment Act 2001

Electoral (Integrity) Amendment Act 2018

Electoral Act 1993

Electoral Integrity Amendment Bill 2005

Electoral Integrity Repeal Amendment Bill 2020

Taiwan

Civil Servant Election and Recall Act

Presidential and Vice Presidential Election and Recall Act

Constitution of the Republic of China

Additional Articles of the Constitution of the Republic of China

California

Constitution of the State of California

Election Code

66 How To Deter Party Hopping in Malaysia? An Exploration of Remedies

United Kingdom

Recall of MPs (Change of Party Affiliation) Bill 2019-21

Recall of MPs Act 2015

Case Law

Malaysia

Abdul Karim bin Abdul Ghani v Legislative Assembly of Sabah [1988] 1 MLJ 171, [1988] 1 CLJ 460 (SC).

Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697, [1992] 2 CLJ 1125 (SC).

Nordin bin Salleh & Anor v Dewan Undangan Negeri Kelantan & Ors [1992] 1 MLJ 343, [1992] 1 CLJ 463 (HC).

Tun Datuk Haji Mustapha bin Datuk Harun v State Legislative Assembly of Sabah & Anor [1993] 1 MLJ 26 (HC).

Tun Datuk Haji Mustapha bin Datuk Harun v State Legislative Assembly of Sabah & Anor [1993] 1 CLJ 86 (HC).

Tun Datuk Haji Mustapha bin Datuk Harun v State Legislative Assembly of Sabah & Anor (No. 2) [1993] 3 CLJ 546 (HC).

India

Kihoto Hollohan v Zachillhu And Others 1992 SCR (1) 686.

Mian Bashir Ahmad v The State [1982] AIR Jammu & Kashmir 26 (HC).

South Africa

United Democratic Movement v President of the Republic of South Africa and Others (African Christian Democratic Party and Others Intervening ; Institute for Democracy in South Africa and Another as Amici Curiae) (No 2) [2002] ZACC 21, 2003 (1) SA 495, 2002 (11) BCLR 1179 (Constitutional Court).

New Zealand

Awatere Huata v Prebble [2004] 3 NZLR 359 (HC, CA).

Awatere Huata v Prebble [2005] 1 NZLR 289 (SC).