MAY 26 — The defection of elected Members of the Legislative Assembly undermines democratic governance. The electorate who exercised their vote becomes disaffected.
Wrongful pressure may be place upon the Constitutional Head to ascertain as to who commands the confidence of the majority of the Legislative Assembly. This draws the Constitutional Head into the political thicket impairing the role as an Impartial Umpire overseeing a transition of executive power. The process of evaluation of the elected member defections by way of statutory declarations and or interviews gives rise to unease.
When results of a concluded election which ought to result to next five years of stability are brought into question the consequences are deleterious for proper governance. It is imperative that an anti-defection law has to be introduced.
As a result of a 1992 decision (the Nordin Salleh Case) a Constitutional amendment has to be introduced to rectify the precedent that Anti defection laws contravenes Freedom of Association (Art 10 of the Federal Constitution).
Any Constitutional Amendment ought to have the following characteristic and elements:
i) Be simple and concise;
ii) Deal with the construction of Art 10 without extended reference to political party complexities; and
iii) Confines itself to the Dewan Rakyat and NOT the Dewan Negara as the source of disaffection is the defection of Members of Parliament.
A single new Constitutional Provision should be passed: “The seat of a Member of Parliament shall become vacant when he ceases to be a member of, or resigns or is expelled from the political party for which that member contested in the election. “The Singapore Constitution contains a similar provision (Art 46(2) (b)). The simplicity and conciseness will obviate delay to the passage of Anti defection laws and State Assemblies may also convened after such a passage of Amendment to pass similar anti-defection in their respective State Constitution. The Courts will be under a duty to give weight and meaning to this Constitutional amendment. The baneful impact of the extended meaning given to Freedom of Association to strike down anti defections laws will be rectified.
* Philip Koh Tong Ngee (LLB)Hons(Malaya);LLM(London);MA (Theology)(ACU) Adjunct Professor, Universiti Malaya; Advocate & Solicitor, High Court of Malaya
** This is the personal opinion of the writer or organisation and does not necessarily represent the views of Malay Mail.