Legislative seats belong to winners, not the parties whose symbols were used in elections
In law, it’s safe to assume that the proposed Anti-Hopping Bill can only be fatally flawed (See here).
It would be safer to focus on electoral integrity and the rule of law, the basis of the Constitution.
First things first.
In law, legislative seats belong to winners, not the parties whose symbols were used. A legislative seat is the “property” of the holder.
Under Article 13 of the Federal Constitution, no one can be deprived of property without compensation. Article 5 guarantees the “right to life”. There can be no discrimination under Article 8, any discrimination being an exception under special circumstances. There may be a need for affirmative policies arising from the burden of history.
We don’t have the details on the proposed Bill. The prognosis can’t be good. The government will first amend Article 10 — freedom of association — of the Federal Constitution before tabling the proposed Bill.
We can assume that political parties — read kingmakers or small parties — can still opt out i.e. not support the government or Opposition or go from one side to another.
Individuals “frogging” or hopping may be a separate matter.
In India, upheld by the Supreme Court, it would not be considered frogging if at least a third of a party breaks away from government or Opposition and supports the other side or chooses neutrality in the legislature. The anti-hopping Act helped bring greater political stability to India
This brings us back to the real issue in electoral reform viz. electoral integrity.
The issue arises because the First Past the Post System (FPTPS), adopted from Westminister, fell on undemocratic soil in Malaysia, and Singapore too.
In the UK, unlike in Malaysia and Singapore, there’s no gerrymandering of seats. There are only three national parties. Coalition doesn’t happen in Britain and if it does, it can only take place post-election. Pre-election coalition is considered undemocratic. It circumvents the democratic process by endorsing elite power-sharing through seat sharing and denies the grassroots majority meaningful participation in elections.
Gerrymandering, a widespread practice in Malaysia and Singapore, denies the democratic principle of one man, one vote.
To add insult to injury, the governments in Singapore and Sarawak have not changed since 1959 and 1966 respectively.
Under international law, when a government can’t be changed through election or no election is held, the people have lost their sovereignty to a handful of crooks — implied in law — in power.
It’s the duty of the international community, under international law, to restore sovereignty to a people who have lost it. We know from recent history, 2003, that the coalition of the willing restored the sovereignty of the people of Iraq. Other considerations were also cited before President Saddam Hussein was hanged by President George Bush Jnr.
Moral High Ground
Cynics may snigger that America, for example, trots out the Mantra on the rule of law, human rights, international law, democracy, consent of the governed and legitimacy only when it suits its convenience.
Otherwise, it has been alleged, that America only pays lip service to the Mantra and acts with impunity. Hundreds of thousands, if not millions, have been killed since 1950 in Korea and Vietnam and Afghanistan to Iran, Iraq, Yemen, and Libya to the Gaza Strip, Lebanon and Syria.
The killings continue even as Washington sheds crocodile tears over the mythical “white-skinned, blue-eyed and blonde” people in Ukraine. Swedes, the most Nordic — read blonde — people, are only 20 per cent Nordic.
The western media has gone ballistic with what can only be considered a litany of lies based on fake images dredged up from earlier wars in other places.
Video games on wars have also been inserted into “news” reporting. Journalists report on the war zone from the comfort zone of the studio.
Still, images from “God alone knows where” are displayed in the background. The difference in the resolution between the reporter and the background is clear.
There’s no breeze blowing through the reporter’s hair.
All that may be true but it cannot be denied that when push comes to shove, America does seize the moral high ground from time to time, and maybe the only nation on Earth willing to provide leadership.
Let’s get away from the digression, necessary in law, and go back to Sarawak.
It’s a certainty that if election run-offs had been held after the recent territorial election on Sat 18 Dec 2021, in seats where no candidate collected 51 per cent of the votes counted, the ruling Gabungan Parti Sarawak (GPS) would not be returned to power.
When the winning candidate collects less than 51 per cent of the votes counted, even if at least 51 per cent of the electorate turns up in every seat, the election result cannot be perfected in law. There’s no legitimacy, there’s no consent of the governed, and sovereignty has been lost.
The fact that the Dayak as Orang Asal (indigenous), the majority community in Sarawak, hasn’t held the Premier’s post since 1966 and Governor’s post since 1963, is telling in law.
Patently, the unconstitutional situation can’t be allowed to prevail for much longer. The people can rise, as one, and take to the streets.
They have nothing to lose but their chains of slavery.
In Johor on Sat 12 Mar 2022, another example, Barisan Nasional (BN) was declared winners in 40 of the 56 seats at stake.
In fact, BN won only 23 seats with at least 51 per cent of the votes counted. In another 17 seats, they obtained less than 51 per cent of the votes counted.
BN was given the 17 seats as well, free, based on the FPTPS. There were no election runoffs.
The powers that be belabour in the delusion that just 25 per cent of the votes counted in a seat suffices, and can help clinch victory.
The other 75 per cent of the votes, the majority, would be splintered among many Opposition parties, who avoid taking on the ruling party/coalition one to one and instead try to outdo each other even at the risk of losing their electoral deposit.
The moral of the story: the government of the day would never, in a million years, allow election run-offs i.e. between the top two candidates in seats where no one collected at least 51 per cent of the votes counted.
It would also never reserve non-constituency seats for the collective losing votes in seats.
If democracy is about the right of the majority in the legislature to rule, it must also mean the right of the minority — i.e. the collective losing votes in seats — to be heard in the legislature if a party failed to win even one seat.
Too Much At Stake
We have come full circle.
The proposed Anti-Hopping Bill, it’s clear by now, would not help stop the splintering of Opposition votes made worse by the absence of election run-offs.
It may help prevent Opposition lawmakers from defecting to the government and vice versa if the court allows the seats to be taken away by law.
It’s unlikely that government lawmakers, Bill or no Bill, would defect to the Opposition. There’s too much at stake for those in government.
Still, it did happen on Mon 24 Feb 2020 when Mahathir Mohamad abruptly resigned as Prime Minister and brought down the government.
After GE14 on Thurs 10 May 2018, a curious situation arose. Many lawmakers from the fallen Umno defected to Bersatu which won only 13 seats.
After the Pakatan Harapan (PH) government fell on Mon 24 Feb 2020, quite a number of lawmakers defected to Bersatu from the key PKR component.
Now, it seems that only PH wants the proposed Anti-Hopping Bill. Others, including BN, may not see any benefits in the move. PH will probably pull the carpet from under Ismail Sabri if the Prime Minister does not go along with the proposed Bill.
Some self-serving Indian and Chinese leaders and their supporters may root for BN if it returns to its roots i.e. seat sharing and power-sharing and taking decisions based on consensus i.e. no voice against.
The Cabinet should also adhere to the consensus principle.
Generally, Indian and Chinese voters will not support race-based parties, especially MIC and MCA.
Malay may not support MIC and MCA candidates in Malay seats where Umno makes way for them.
Other Malay parties will win these seats with less than 51 per cent of the votes counted.
There’s no legitimacy. Such results can’t be perfected in law.
It’s not necessary that all voters must turn up on D-Day.
It’s enough that 51 per cent of the voters overall and 51 per cent in every seat turn up.
It can be argued that we will only have a bad government if too many people vote. Ideally, only those who know where rotten politics ends and good gov’t begins should vote.
Bottom Up Democracy
There’s also a case for bringing back local government elections suspended since 1965 in the wake of Indonesia’s konfrontasi (confrontation) and ganyang Malaysia (hang Malaysia) campaigns against Sabah and Sarawak being included in Malaysia.
In hindsight, the suspension was based on fig leafs.
Under the Federal concept, although Malaysia is not a Federation but Equal Partnership, power is delineated at three levels viz. federal, state and local.
The return of local government elections will not only see the emergence of bottom up democracy and the greater empowerment — read Orang Asal, Indian, Chinese and Others — of communities and those (example Indian) also politically disenfranchised but the extension of voting rights — albeit only in local government jurisdiction — to foreigners legally in Malaysia.
It’s not clear whether foreigners can be elected Mayor. The court can Rule on the matter.
I remember a Dane — related by marriage — insisting on participating in an election held in a kampung in Sarawak.
The elders kicked up a fuss but relented when he pointed out that in law he was affected as he was staying in the kampung legally.
It’s also possible to levy taxes mostly at the local government level only since most development isn’t national or statewide. – New Malaysia Herald
About the writer:Â Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. Heâs not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be foundÂ here.