DECEMBER 28 ― The Malaysian Bar statement
I refer to the media statement dated December 19, 2022 by the President of the Malaysian Bar, Karen Cheah Yee Lynn, that Clause 4 of the unity government Memorandum of Understanding (“Clause 4”) overreach Article 49A of the Federal Constitution.
The honest dissenter and conscientious objector
The objective of Article 49A is to allow voters to determine whether they support the MP who crossed the floor or the party he defected from. Clause 4 is a mechanism to trigger the by-election upon a defection. Honest dissenters and conscientious objectors will be supported by the voters while corrupt politicians will be condemned. Clause 4 does not entrench party bosses.
Clause 4 upholds the purpose and design of the anti-hopping laws returning to voters the power to judge those who crossed the floor. Voters in the by-election can take into consideration the following:
Firstly: The instances where an MP’s right to vote according to his conscience and judgment differs from his political party in reality are few and far between. This is because a political party functions on shared beliefs. Any unfettered freedom of its MPs to vote as they please independently of the political party’s declared policies and shared beliefs will not only embarrass its public image and popularity but also undermine public confidence in it.
Secondly: Loyalty to party is the base for shared beliefs. A divided party is looked at with suspicion by the voters. Thus, MPs generally accept the party whip’s directions because of shared beliefs in the political cause. The Indian Supreme Court in Kihoto Hollohan v Zachillu 1992 SCR (1) 686 at paragraph 20 quoted with approval Griffith and Ryle ― Parliament, Functions, Practice & Procedure 1989 Edition page 119) with regard to non-compliance with the whip’s instructions as follows:
“It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy. To abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against the party is disloyalty. To join with others in abstention or voting with the other side smacks of conspiracy.”
Thirdly: The 18 policy objectives listed in Clause 2 of the MoU constitute the shared beliefs and shared preferences of the unity government. Therefore, defections by unity government MPs arising from differences in objectives are most unlikely.
Fourthly: Honest members of parliament who have lost confidence in the prime minister of his party, by convention form a caucus to commence internal party proceedings to change the party leader. The new party leader would then be appointed prime minister. This occurred several times recently in the United Kingdom and Australia. Honest members of parliament do not join the opposition to vote their own party out of government.
Fifthly: Constitutional convention provides for an MP who crosses the floor to join another party to resign his parliament seat and re-submit himself quickly to his voters under new colours. This was the practice until the insertion of Article 48(6) of the Federal Constitution that provided for a disqualification period of five years upon the resignation of an MP from his seat. This Article has been repealed by the recent amendments. Re-election is the route of a sincere conscientious objector.
Separating the wheat from the chaff
Clause 4 allows the voters to separate the wheat from the chaff. The honest dissenter and conscientious objector resign and re-contest his seat under his new party, only the politically corrupt will argue that he crossed the floor in the meanderings of a troubled conscience and found salvation by his ministerial or GLC appointment once he reached the other side. No one buys such rhetoric and the Malaysian Bar should not do so.
The Overreach Concern
Clause 4 does not overreach Article 49A. Clause 4 applies only in three situations: (1) motions of confidence; (2) supply bills and (3) procedural motions having effect on the legitimacy of the Unity Government.
Constitutional convention requires a government, if defeated in any one of these three instances to resign from office. Members of Parliament are free to speak and vote according to their conscience and judgment in all other matters in Parliament.
Unless the coalition parts ways, the unity government with 148 members of Parliament who won their seats on their respective component parties’ tickets can only be defeated in these three situations by defections.
The objective and purpose of the anti-hopping laws is to curb the evil of political defections motivated by the lure of office or other similar considerations causing political instability, political immorality and political corruption. Political defections endanger the very foundation of democracy.
The other purpose of the anti-hopping laws is to provide for an effective and properly functioning government.
Where the member of Parliament (“the MP”) resigns from his party but fails to resign his seat, acting in concert with the opposition to vote his erstwhile party out of government, this is an open defection. This is within Article 49A(1)(a)(i).
Where the MP does not resign as a member of his party but fails to comply with his party whip’s direction by abstaining to vote in the Dewan Rakyat in the three situations referred to earlier, or worse conspiring with the Opposition to vote his own government out of office, this is a hidden defection.
This is a worse type of immorality because the MP is sabotaging his own party from within as well as betraying the trust and mandate of his voters.
This betrayal involves devious and deceitful conduct. Clause 4 envisages a clause to be inserted in the party’s constitution providing that the MP ceases to be a member of the party upon abstaining or voting against the party whip’s directions in the three situations (“the Cesser Clause”). Where a hidden defection occurs, cessation of party membership pursuant to the Cesser
Clause will be both morally and legally justified. This is within the design and intention of Article 49A(1)(a)(ii).
Clause 4 is not a deeming provision. It is upholding the anti-hopping laws.
The possible abuse concern
The Bar is concerned Clause 4 will encourage a possible abuse by party bosses inserting resignation or expulsion clauses in party constitutions that circumvent due process. The Bar advocates the anti-hopping laws postpone automatic expulsions to give the affected MPs sufficient legal redress through the courts to determine the legality of such calls by the political parties.
This concern is the product of an overly active imagination. It belongs to the realm of conjectures.
Firstly: The Bar’s proposal is impractical. The country cannot be suspended in limbo under a caretaker government or emergency rule until legal challenges are exhausted.
Secondly: There is no rational reason for the unity government to abuse the resignation or cessation processes to engineer the unity government’s own collapse. The party boss gains no advantage.
Thirdly: The anti-hopping laws’ solution to a defection is for the voters to decide in the ensuing by-election. Therefore, neither the party boss nor the defector gains when a defection occurs.
The Rule of Law concern
The Bar’s concern that Clause 4 sacrifices democratic practices and the rule of law on the altar of political stability is unwarranted. The proposed Cesser Clause in the party constitution is valid and constitutional:
Firstly: Clause 4 is in keeping with Dr Adnan J’s suggestion in the Indian Supreme Court case of Mian Bashir Ahmad vs The State AIR 1982 Jammu & Kashmir 26 at paragraph [73] to insert an appropriate clause in the political party’s constitution or code of conduct to enforce discipline in dealing with the evil of political defection.
Secondly: The Indian Supreme Court in Kihoto Hollohan v Zhachillu 1992 SCR (1) 686 and Mian Bashir Ahmad v State of Jammu & Kashmir AIR 1982 Jammu & Kashmir 26 upheld a similarly worded anti-hopping provision as the Cesser Clause to be constitutional.
Thirdly: An MP is bound by his party constitution and is liable to be disciplined according to its terms. If the MP vehemently disagrees with the Cesser clause he should not join the party or if he has already joined, he can leave the party. What the MP cannot do, is to agree to the Cesser clause and upon winning the seat on the party ticket, reneged on his obligations.
Fernando J in the Sri Lankan Supreme Court case of Gamini Dissayake v MCM Kaleel [1993] 2 Sri Lanka Law Reports 80 at page 176 said the MP cannot claim immunity from disciplinary measures for breach of his party’s constitutional obligations:
“The politician who join a political party in order to enter parliament can validly subject himself to a condition which regulates, without denying, his freedom of speech. If you wish to play cricket, you must accept the rules of cricket.”
Fourthly: the MP voting in these three instances, is not called upon to exercise his conscience and judgment on policy or programme. It is a vote on party loyalty and party unity. The Hansard is all the evidence required as to how the MP voted. There are no complex issues of law or fact as the Bar suggests.
The undemocratic practice concern
The Bar’s concern that Clause 4 gives rise to undemocratic practices may be due to unfamiliarity with the party system and role of party whips in our Malaysian Parliamentary system.
The Bar’s concern arises from the fear that Clause 4 stifles the MP’s right of dissent, unfettered freedom of conscience and to act independently of his party. This concept has its genesis from Edmund Burke’s famous speech in 1774 to the Electors of Bristol:
“But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living... Your representative owes you, not only his industry, but his judgment, and he betrays, instead of serving you, if he sacrifices his opinion.”
The Courts in many jurisdictions and authors of respected constitutional textbooks have said that these are outdated concepts from the 18th and 19th centuries. These concepts were conceived in an era where political parties have not been fully developed. These concepts have to be adjusted to meet the needs of modern democracies. Political parties are essential for the proper functioning of modern democracies. The elected representative’s freedoms are subject to party discipline, instructions from party whips, codes of conduct and party constitutions:
Firstly: The Courts in all jurisdictions recognise that the political party is indispensable for modern democracy. In Parkash Singh Badal v Union of India paragraph 22 the Court said:
“It is now accepted on all hands that for effective functioning of the Parliament and governance of the country, political parties are not only a reality but indispensable.”
Secondly: The Court recognizes that voters elect a government based on the party’s policies and programmes:
“Political parties exist because the people wish to see the government of the country carry on according to a particular policy. Where the Legislature is composed chiefly of independents or a number of small parties, no government can be certain of support. The electors therefore, do not vote for a candidate but usually for a party with some exception here and there. The primary consideration before the electors is which party is to be voted into power and not independents. The party is voted to power... to put into practice its avowed policies on all matters of national concern and to translate into action the aspirations of the electors of social and economic justice to the people at large.” (Parkash Singh paragraph 23)
Thirdly: The Courts recognise the need for an effective majority to distill a coherent policy in parliament. The Court in Parkash Singh paragraph 23 accepted the position stated by Professor Harold J. Laski in his book Parliamentary Government in England on the need for an effective majority in order for coherent policy to be made:
“Above all, it is important to realize that the House of Commons is not an exact mirror of the interests and opinions of the nation. If it were, it could not possibly perform its work. For those opinions and interests are so various in their formidable complexity that any House which sought to find any effective place for a considerable number of them would be too atomic in character to be capable of coherent policy. The life of the House of Commons depends upon its representation only of such predominant strands of general public opinion as will, normally, enable a government to be formed behind which there is an effective majority.”
Fourthly: The Courts have also accepted that the MPs, the political party and Parliament functions are to translate into action the aspirations of the voters for social and economic justice. The idea that each individual MP must personally investigate the minute details of every policy is not practical:
“It means, of course, that the life of the House of Commons is necessarily lived in terms of the party system. Parties are the basis upon which the organisation of the House for coherency is made possible: and the member of the House of Commons must, with very few exceptions, be a good party man if it is to do its work adequately.
The philosopher in his study may repine at this necessity. He may insist that this involves the sacrifice of individual conscience to party allegiance. He may argue that it leads members blindly into division ― lobbies on matters which they have not even heard the debate in chamber. He may write angrily, for reasons I shall discuss later, about Cabinet dictation in the House. The facts are quite different from closet abstractions. The number of times when an average member feels inclined to vote against his party, especially when he is in office, is pretty small; and the evidence seems to show that when the impulse as to vote is an urgent one, he obeys it. It is foolish to imagine that, in matters of debate, a member must make his mind upon each separate item the House decides. The House is a body for getting business done, the member’s task is to be aware of large tendencies and to be on hand to support those the general direction of which he broadly approves. If he has so nice a conscience that a scrupulous examination of mostly technical minutiae is the necessary preamble to his vote, the proper comment upon his attitude is that he is not by temperament suited to be a member of a legislative assembly.” (Professor Harold J Laski ― Parliamentary Government in England; Parkash Singh paragraph 23)
The whip system
For the political party system to work the role of the party whip is essential.
The whip system is part of the conventionally established machinery of political organisation in the House of Commons and has been ruled not to infringe a MP’s parliamentary privilege. (Kihoto paragraph 20 accepting the passage from Constitutional Reform- Reshaping the British Political System by Rodney Brazier 1991 Edition pages 48 and 49) This is also the practice in the Dewan Rakyat.
Conclusion
The MP in exercising his right to vote according to his conscience has to balance it with the need to ensure parliament can carry out its functions and business efficiently and effectively. The requirement for an MP to vote according to his party whip’s directions, far from being undemocratic practice, is in fact, an essential mechanism to ensure the proper functioning of government and parliamentary democracy. It will thus be appreciated that Clause 4 is not undemocratic nor diminishes the rule of law.
The righteous steps into the light and is vindicated, the wicked hides in the shadows and is condemned. Clause 4 shines the light for voters to judge.
How can this be wrong?
* William Leong Jee Keen is the Member of Parliament for Selayang.
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
* A previous version of this story contained an error which has since been corrected.
