Malaysia Today - Your Source of Independent News
Malaysia Today - Your Source of Independent News |
| Posted: 01 Sep 2012 03:38 PM PDT
Party-hopping is a potent threat to parliamentary democracy and it is hoped that politicians will come to grips with this issue in a bipartisan manner. Roger Tan, The Star THE great Winston Churchill (1874-1965) was known for party-hopping. In 1904, he changed parties from the Conservative Party to the Liberal Party, and was made Under-Secretary of State for the Colonies in 1905. He officially returned to the Tories in 1925 after he failed in two successive attempts to win a seat as an independent. On record, his reasons for defecting to the Liberals were the Conservatives' reluctance to undertake social reform and their protectionist policy of favouring trade with the British Empire. But on the other hand, the Liberals were then an up-and-coming party, and his calculated move obviously did catapult him to high office at the rather young age of 31. Of course, admirers and detractors of Churchill would respectively describe his act as one of political conscience and opportunism. But that is immaterial as until today, the British parliamentary system still does not proscribe party-hopping which also has different nomenclatures such as party-crossing, party-switching, party-leaping, floor-crossing and waka-jumping. Like any democracy, regardless of it being an established or an incipient one, Malaysia too faces this perennial problem of party-hopping and elected representatives resigning from their political parties to become an independent. Hence, we are not short of inveterate party-hoppers. One of them is Sabah State Reform Party (Star) chairman Datuk Dr Jeffrey Kitingan. Prior to this, he had joined Parti Bersatu Sabah (PBS), the Parti Bersatu Rakyat Sabah (PBRS), Angkatan Keadilan Rakyat (now defunct Akar), United Pasokmomogun Kadazandusun Organisation (Upko) and Parti Keadilan Rakyat (PKR). It is, therefore, not surprising for such politicians to be given various undignified names such as political frogs, traitors, lepers and chameleons. But we not only do not have any anti-defection law, but the Federal Constitution guarantees the freedom of association – that is the right to join or not to join an association or dissociate from it. The justification for this is best summed up by the eminent Indian jurist, Nanabhoy Palkhivala, in his book, Our Constitution Defaced and Defiled: "No greater insult can be imagined to members of Parliament and the state legislatures than to tell them that once they become members of a political party, apart from any question of the party constitution and any disciplinary action the party may choose to take, the Constitution of India itself expects them to have no right for themselves, but they must become soulless and conscienceless entities who would be driven by their political party in whichever direction the party chooses to push them." However, today the Indian Constitution not only disqualifies an elected representative if he resigns from his political party but also if he votes or abstains from voting contrary to any direction issued by his political party without its prior permission or without having been condoned by his political party within 15 days after the date of voting or abstention. In fact, there are about 40 other countries which have various anti-defection laws. Our neighbour Singapore has a provision in Article 46 of her Constitution which disqualifies a member of parliament if he ceases to be a member of or is expelled or resigns from his political party. Hence, a by-election was held on May 26 this year when Hougang Member of Parliament Yaw Shin Leong was expelled by the Workers' Party on Feb 15 for alleged extramarital affairs. In Malaysia, freedom of association is enshrined in Article 10(1)(c) of the Federal Constitution, but Article 10(2)(c) and (3) allow Parliament to impose such restrictions as it deems necessary in the interest of security, public order, morality, labour or education. In the 1992 case of Dewan Undangan Negeri Kelantan v Nordin Salleh, the Supreme Court (now Federal Court) ruled that an amendment to the Kelantan state constitution prohibiting party-hopping was inconsistent with Article 10(1)(c). The apex court declared that such a law was invalid because the restriction imposed by the Kelantan Constitution could not be a restriction imposed under Article 10(2)(c) and (3) of Article 10 as it was a law passed by a state legislature and not the Federal Parliament. In the words of the then Lord President, Tun Abdul Hamid Omar: "It is, in our view, inconceivable that a member of the legislature can be penalised by any ordinary legislation for exercising a fundamental right which the Constitution expressly confers upon him subject to such restrictions as only Parliament may impose and that too on specified grounds, and on no other grounds." It follows that any anti-hopping law if passed by the Penang state legislature will be inconsistent with Article 10 since our apex court has already declared that only Federal Parliament can impose any restriction on freedom of association and dissociation such as on the ground that party-hopping is morally reprehensible. And this cannot be done by way of an amendment to a state constitution or an ordinary legislation passed by a simple majority in Federal Parliament. In other words, for any anti-hopping law to be intra vires the Constitution, amendments must first be made by Federal Parliament to Article 10 or Article 48(6) (which disqualifies a person who has resigned from the Dewan Rakyat membership from running again in a general election for a period of five years from the date of his resignation) and section 6(1) of Part I of the Eighth Schedule to the Federal Constitution. In this sense, one would have expected the Penang state government to be more respectful of the Federal Constitution when Article 4 declares that the Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with it shall be void. To pass a law knowing that it is invalid but with the hope that someone will challenge its validity at the Federal Court is indeed an example of bad governance and it says a lot about the government's lack of respect for the rule of law and constitutional supremacy. That said, personally I would support an anti-hopping law. Having seen the amount of politicking and instability since 2008 caused by those who have defected or become independents, including the Sept 16 fiasco, I believe such a law will provide stability especially if the next election is going to be the most keenly contested one in our nation's history. In fact, hitherto none of the defectors is near the stature of Churchill and neither has any one of them impressed me to be doing out of their own conscience other than perhaps for their own personal aggrandisement. It is also rumoured that some have turned into multi-millionaires overnight. Be that as it may, party-hopping is a potent threat to parliamentary democracy. It is a nefarious act of betrayal especially when it can be employed as an extra parliamentary means to topple a democratically-elected government. In fact, this issue is many times more crucial than those advanced by Bersih! Therefore, by prohibiting our elected representatives from switching their political allegiance, it will ensure that the sacrosanct will of the people expressed through the ballot box is respected. If they defect, the inevitable consequence must be that they give back their seat or seek a fresh mandate. It is hoped that politicians will come to grips with this issue in a bipartisan manner as it will not bode well for the nation if due to this we are plunged into political chaos or the country comes to a standstill after an election. Currently, all political parties are in one way or another hypocritically guilty of condoning and enticing party-hopping. One can only hope that they will remember and remember it well that what goes around will come around to haunt them. The writer is a senior lawyer.
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| Posted: 01 Sep 2012 11:27 AM PDT  Cheap sale: Oh (in the foreground) showing the various public properties that he claimed the Lim administration sold off to private developers and individuals. Barisan Nasional politicians have been on the warpath over the way the Penang state government has been selling off land to private developers. Joceline Tan PENANG'S famous Esplanade has been quite a political hotspot ever since the Speaker's Square was located there. It is the Pakatan Rakyat government's gesture towards democracy and free speech in the state. But things got a little too hot last weekend when a blue truck drove up to the spot and the occupants on board launched an instant ceramah criticising the state for selling off land to private developers. It was the Barisan Nasional's mobile war truck, a refurbished mini lorry that opens up into a small ceramah stage, equipped with sound system and projection screen. The mobile war truck idea came about after Barisan was denied the use of public community halls and fields for ceramah purposes by the Pakatan government. It immediately drew a small crowd of mostly curious onlookers. But Speaker's Square is said to be patrolled by loyal DAP supporters, who hang around the place, ready to heckle speakers who criticise their party. That was more or less what happened last Sunday. Jeers and boos erupted from several people when state Barisan Youth chief Oh Tong Keong, who is a superb Hokkien speaker, began his "Penang For Sale" talk. "We know you were angry and decided to vote for them. But we must vote for a government that works hard, creates jobs, builds affordable houses, not a government that sells off the people's land. Penang people like to shop during cheap sales, but Penang land is not for cheap sale. One day, Lim Guan Eng may even decide to sell off Komtar," said Oh who is also Penang Gerakan Youth chief. Oh and his Gerakan colleagues have been a thorn in the side of the Pakatan government over the sale of public land. The most controversial transaction thus far has been Taman Manggis, a piece of land in the heart of George Town that the Barisan administration allocated for housing for the poor and which the Pakatan government has reportedly sold to a company to build a hotel and private medical centre.  Dr Thor: 'DAP trying to sell Penang's land, sea and sky.' Oh said it was "taking from the poor to give to the rich" and named Chief Minister Lim Guan Eng "land broker of the year". Oh's team also asked about a certain "Miss P" who owns the bungalow rented out to Lim and who apparently has links to the hotel and medical centre project. Lim retaliated by slamming Oh as "brainless, childish, immoral, dirty and shameless" while also accusing him of dragging the owner of his rented residence into politics. But strangely enough, he did not deny the alleged connection of "Miss P" to the project. The string of names shot Oh to some degree of fame and as he stood on top of the truck last weekend, he held up the Chinese language newspaper of the report. "It's okay, he can scold me, I don't mind. It's also okay that Guan Eng couldn't build any low-cost houses. But it is not okay for him to take land from poor people to give to rich people," he said, as some people clapped while the DAP supporters booed. By then, one of the DAP guardians in the audience was using a loud hailer to shout down Oh. It was Malaysian-style democracy at work; people are all free speech but they only like it when the speaker is saying things that they want to hear. Incidentally, there was a "war casualty"; the man with the loud hailer was so worked up over the war truck ceramah, he suffered chest pains and had to be hospitalised. However, he had several VIP visitors the next day in the form of Lim, state exco member Phee Boon Poh and assemblyman Ng Wei Aik and there were bouquets of flowers around his bed. Ironic statement But the funniest part of the Barisan war truck incident was that Lim condemned it as an illegal assembly and threatened to use the illegal assembly law against them. This was coming from the man whose party used to condemn the illegal assembly legislation. "If they do it again, I will inform the police and MPPP (Penang Island City Council) to take action," Lim said.  Jong: 'Penang people want sustainable development.' There has been too much emphasis on glamour projects and too little on rakyat-type of projects. It was only after the Taman Manggis case exploded that the state government quickly said they would allocate a site for low-cost housing. Among all the DAP YBs, only Jelutong MP Jeff Ooi has spoken out and made a stand on housing for the poor. After the 2008 victory, DAP strategists and advisers had the impression that Penangites were starved for development. The party's developer friends had complained about Tan Sri Dr Koh Tsu Koon's cautious approach on development and they thought the way into the hearts of Penangites would be through more development Lim announced a barrage of mega projects which he thought would impress Penang folk but proposals like the undersea tunnel and super-highways have backfired. The protests against unchecked hillslope projects also came as a shock to his government. Mega projects bring a lot of side effects and should not be rushed through without proper studies and planning. It is quite ironic that while people complained that Dr Koh did not bring more development, the complaint now is that Lim is too pro-development. "People do not mind development but it also means more people and cars. Penangites want assurances about traffic and the environment. They want sustainable development," said Datuk Richard Jong, the new deputy president of the Penang Chinese Chamber of Commerce. The Barisan side can understand why Lim is into mega projects he wants to build his legacy and leave a visible mark. But they are puzzled why Lim is selling off plots of land belonging to the state and MPPP from the sale of the 41ha Bayan Mutiara land to smaller lots in the city. Lim could have saved himself a lot of trouble by being more upfront about the land sales. It is possible some of these smaller properties are sitting there not generating any income. Selling them would add to the state's coffers and provide revenue to fund future projects. Instead, he has claimed that he is doing it to "save money for the people". Questionable transactions When the opposition queried him about the land sales, Lim demanded that they show proof of what they are saying which is ridiculous because the onus is on Lim and his team, as public servants, to explain and defend their decisions. All this has paved the way for his opponents to conclude that the state's Freedom of Information Act and its CAT policy to promote competency, accountability and transparency are just for show.  Ooi: The only DAP man who fought for low-cost housing Basically, Lim's critics think it is wrong to sell off public land without a good reason. Land is a scarce commodity especially on the island and they think that it should be developed via joint-venture so that the property remains in public hands. Moreover, they claimed that some of these transactions were below market value. Gerakan publicity chief Dr Thor Teong Ghee has been very critical of the Bayan Mutiara deal for several reasons. He said the land, which the previous government had intended for the new state government complex, was sold at below market value. Secondly, it was sold to a developer whom he claimed did not have a sound track record. There has been no clear explanation about how the land is to be developed and Dr Thor's fear is that instead of developing it, the new owner may break it in smaller parcels and resell at a hefty profit. "Just imagine, it would be like Tun Dr Lim Chong Eu earmarking a huge tract of land to develop as the Free Trade Zone and selling it to one company to do as he likes," he said. Those on the Barisan side know what they are doing may not necessarily change people's mind about the DAP but they say Lim has got away with too many baseless accusations. They are telling him not to simply blame or accuse the previous government. They say they are not going to take it lying down; they are fighting back. For instance, when Lim wanted to appoint Datuk Patahiyah Ismail as MPPP president in 2009, it was pointed out that the Local Government Act 1976 states that the president has to also be a councillor but the 24 councillor posts were already filled. When Penang Gerakan chairman Datuk Dr Teng Hock Nan, a former MPPP president, questioned the legality of Patahiyah's appointment, Lim accused Dr Teng of being anti-woman and slammed him as "chou nan ren (bad man)". Dr Teng had made a valid observation but Lim was then riding so high that he could say and do what he liked. The hate and blame game was quite entertaining for some people in the first few years but after four years, even DAP people are growing uncomfortable about it. State exco member Chow Kon Yeow has told reporters that it is time to act like the government of the day and take responsibility. Dr Koh's administration was not perfect, it had weaknesses and mistakes but it was certainly not as terrible as Lim has painted it out to be. Dr Koh was a real Penang-born gentleman, he did not shout at journalists or bar them from his press conferences. He did not simply call people liars and racists just because they questioned what he did. He did not blame people when things went wrong nor did he claim credit for what he did not do and he has made a graceful exit. Journalists are beginning to appreciate Dr Koh for his finer points just as they are starting to see the real Lim. Lim seems to have his back against the wall over the land sales especially on the Taman Manggis land case. It looks real bad for a government to sell land meant for the poor to build a hotel and private hospital. It is an emotive issue and it has refused to go away simply because the answers from the state have not been convincing at all. Last week, when Lim was asked about it for the umpteenth time, he exploded and said it was all lies created by Teng Chang Yeow (Penang Barisan chief) and that Teng would sell off the whole of Penang if he became Chief Minister. Two days later, Dr Thor returned fire he said that Lim had sold the land, the sea and even the sky of Penang. The land referred to the land sales, the sea referred to Lim's plans for an undersea tunnel and the sky referred to the increased building density that some developers are enjoying. It is game on. There will be no elegant silence on both sides.
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