READING MY PROPOSAL TO EC IN THE CONTEXT OF PERAK CRISIS

One of the items in my recent proposal to the Election Commission on 18th April, 2009 was, amongst other, to amend Article 48(6) of the Federal Constitution so that assemblyperson who wishes to change allegiance to a party can resign and hold a by-election.

Article 48(6) of the Federal Constitution

“A person who resigns his membership of the House of Representatives shall, for a period of 5 years beginning with the date of which his resignation takes effect, be disqualified from being a member of the House of Representatives.”

Note:

1. There is a similar provision in each and every state in our country in respect of state assemblyperson. Example: Article 13(5) of the Penang Constitution and Article 31(5) of the Perak Constitution.

2. Currently, there is no provision in the Federal Constitution or any other law in our Malaysia which exempts the five (5) years ban.


Consensus before Election

I do not agree for assemblyperson to switch party allegiance unless the assemblyperson had obtained the mandate from the people via a by-election. This is based on the principle of "Consensus before Election".

As the assemblyperson was elected based on his/her individual capacity as well as his/her party’s standing (or being independent as the case maybe), it is only appropriate that any switch of his/her allegiance must seek the consent of the people at the constituency.


Can the assemblyperson in Perak resign in order to seek a fresh mandate from the people to switch party allegiance via by-election?

Based on the current law provided under Article 48(6) of the Federal Constitution and the respective state constitution, such an option is not possible as the resignation would mean that the assemblyperson would be disqualified from contesting in the by-election.

Obviously, some may argue that why not the assemblyperson resign and let others to serve the constituency? Such reasoning maybe valid only if we assume that the assemblyperson no longer wishes to serve his/her people in the constituency. However, at this juncture, there is no such indication by any of the 3 assemblyperson in Perak.


Would dissolving the state assembly in Perak solve the crisis?

Should the state assembly in Perak be dissolved to pave way for a fresh state election, the 3 assemblyperson can contest in their respective constituency and thus, letting the people in their respective constituency decide whether they are agreeable to the switch of allegiance by the assemblyperson. However, the implication of holding a whole state election would be the substantial financial burden to the government, as well as other resources and the people’s time.

Dissolving the whole state assembly to solve an issue arising from 3 state legislative seats is akin to “hitting an ant with a hammer”.

Instead, I am of the view that the crux of the problem in this crisis lies in the flaw of Article 48(6) of the Federal Constitution and the similar provision in the respective state constitution.

It would be better if the 3 assemblyperson be allowed to resign and seek a fresh mandate from the people to switch party allegiance.

Thus, I have proposed to the Election Commission to amend Article 48(6) of the Federal Constitution (and the respective state constitution) so that the 5 years disqualification should not be applicable to assemblyperson who wishes to resign in order to obtain a fresh mandate from the people for the assemblyperson to change allegiance to a party (or to renounce as the case maybe).


Should there be a provision in law to prevent change of allegiance of an assemblyperson to a party?

In my opinion, an assemblyperson cannot be forced to align with any political party. The predominant duty of an assemblyperson is to serve the people in his/her constituency. The association of an assemblyperson with a political party should be construed as merely a form of assistance to the assemblyperson to better serve the people in his/ her constituency as a group. Thus, should the assemblyperson view that the political party no longer able to assist the duty of the assemblyperson to serve the people, then it is only right that the assemblyperson reconsider his/her association with that political party.

However, as said earlier, the assemblyperson should seek a fresh mandate from the people at his/her constituency based on the principle of “Consensus before Election”.


Should there be a provision in law to compel the 3 assemblyperson to resign and seek a fresh mandate from the people in the event of change of allegiance to a party?

I am of the view that the Election Commission should also make recommendation for provisions in law to compel assemblyperson to resign and seek a fresh mandate from the people in the event of change of allegiance to a party.


Conclusion

Prior to the amendments in law, any attempt to resolve the Perak crisis would only be in the short term interest and be futile in the long term.

I reckon that it would be better if both leaders of Barisan Nasional and Pakatan Rakyat would work together in reviewing the election laws in Malaysia and make the appropriate recommendations to the Election Commission for the benefit of Malaysians.