13 September 2008
The Morality of Members of Parliament Crossing the Floor
Response to Bar Council and Others
The Bar Council, Harris Ibrahim and Sean Ang are reported in the New Straits Times on September 10, 2008 to have said that Members of Parliament crossing the floor to join another party is legal but immoral. It is therefore necessary to draw the attention of the public to several fundamental principles with regard to the issue on the morality of MPs crossing the floor. Crossing the floor to sit as a member of parliament in another political party is nothing new in parliamentary democracies. It has been described as the height of treachery. It has also been praised as the stuff which parliamentarian heroes are made of. The great Sir Winston Churchill is perhaps the most famous parliamentarian to cross the floor and switch allegiance on more than one occasion. There is no dispute that crossing the floor for money or personal gain is both immoral and a betrayal of the voters' trust. However, when the MP crosses not for personal gain but in the interest and welfare of his constituents then he should be commended.
The Arguments for Immorality
The argument that crossing is immoral is that the MP was elected on his erstwhile political party's ticket and that is amounts to a fraud on his voters. This argument is founded on two assumptions. The first is that the MP's seat belongs to the political party. The second is that the MP was voted in based on his party's platform and policies. The assumptions are wrong and the argument has failed to take into consideration several objectives and purposes of certain fundamental principles of a parliamentary constitutional system. Upon a proper understanding of these fundamental principles it will be seen that far from being immoral, the ability for MPs to cross the floor is not only moral but part of the democratic process.
The Electoral System and the Power of the 222
The argument that the voters have elected the MP on the party's ticket and that the seat belongs to the party and not the MP arises from a confusion over the nature of the electoral systems in use. There are two major electoral systems in the world's democracies:
• The first is the constituency-based electoral system. By this system, voters in each local area or constituency elect an individual candidate. The person who wins the majority of votes in each constituency becomes a member of parliament. The party with the majority of MPs forms the government. In this system, the individual MP and not the party holds the seat. This means the MP can cross the floor and still keep his seat
• The second is the proportional representation system. By this system, the electorate in a large area, for example, a province or a country votes for political parties. The political party chooses the people who will become MPs. Each party is allocated a number of seats proportional to the number of votes it receives in the election. In this system, the seat belongs to the party and the MP who crosses the floor cannot keep his seat.
The electoral system used in Malaysia is the constituency-based system. Therefore the argument that the MP has stolen his party's seat when he crosses the floor is not supported upon a proper understanding of the constituency based electoral system. The constituency based system provides for individuals and not political parties to be the candidates for elction to the Dewan Rakyat. This is shown by independents, persons who do not belong to any political party, to contest. The candidate is elected not only on the policies and political ideology but also his personal character and capability. The policies and manifesto of the individual candidate will substantially be similar with the policies of other candidates from his party but there will also be differences according to the specific needs of the constituency and the candidate's own capabilities. The party ticket is therefore a grouping of individual candidates professing to hold similar policies and ideology. However, the constituents are voting for the individual candidate based on his policies, his personal capabilities and personal commitment.
The party ticket argument also fails to give effect to the provisions of Article 43(1) and 43(4) of the Federal Constitution. Article 43(1) provides that the Yang Di-Pertuan Agong is to appoint the Prime Minister who in his judgment is likely to command the confidence of the majority of the members of the Dewan Rakyat. Article 43(4) provides that the Prime Minister is to tender the resignation of his cabinet if he ceases to command the confidence of the majority of the members of the Dewan Rakyat. The effect of our electoral system and the operation of these two articles is that the constituents have given the power to the majority of the 222 members of parliament to decide who, from amongst them, is to be the Prime Minister. The tenure of the 222 and their power is fixed. It continues until the next general election. The tenure of the Prime Minister, however, is not fixed and not immutable. It is subject to the Prime Minister continuing to enjoy the confidence of the majority of the 222 throughout the term of the Parliament. By its very nature the confidence enjoyed by the Prime Minister is capable of being lost and changed. This can be due to many factors including where the Prime Minister is unwilling or unable or inept in performing his duties or has failed to properly implement policies or no longer enjoys the confidence of the people or if there is a shift of public opinion as to the desirability of keeping him in office. The power to remove the Prime Minister in practice includes and requires the members of parliament crossing the floor. It is this ability to cross the floor that ensures that only a capable Prime Minister can hope to see the end of the Parliamentary term. The failure for the MP to act is that he will be unlikely to be re-elected by his constituents at the next General Election. It is thus the MP's moral duty to cross the floor if necessary to ensure that an inept Prime Minister do not remain in office.
The MPs Duty and Good Conscience
The argument that the MP betrays his voters by joining another party glosses over basic principles governing an MP's duties and his need to exercise independent judgement. The word "democracy" comes from the Greek word "demokratia" which means "government by the people". The MP is elected to be the voice of his constituents and not to be the voice and handmaid of his political bosses. The MP and his constituents are the conscience of the Executive. The Honourable K. Rozzoli, Speaker of the NSW Legislative Assembly has described this as follows:
"A democratically elected Parliament is the only true voice of the people and accountability to the people it serves is the basic plank of a democratic system, however, no matter what forms of statutory accountability we bring to bear, true accountability lies in the conscience of both the people and their representatives."
The Honourable Speaker also explained that an MP's duties owed to his constituents prevail over that to his political party:
"The primary duty of a member is to his constituents who live within the electorate…The second duty is to help people outside the electorate… The third duty is to the Parliament, both to the institution itself and to the general dignity and process of the Parliament… The duty which exists to one's political party is, I believe, not a duty. It is something we assume as an extra curricular activity."
The paramount duty of the MP is therefore to act in the interest and welfare of his constituents and the next in the order of priority is to the Parliament. The Parliament, is the second pillar of government. It is one of the three institutions in the concept of the separation of powers of the government. It is to act as a check and balance to executive power. The Parliament is the avenue, through the principle of parliamentary privilege, by which the people may explore alternatives to the Executive's proposals, to expose a wrong or an injustice. The people vote their parliamentarians to guard their liberties and to query the activities of the Executive and its servants. It is in the ability of the Parliament to challenge the Executive that provides the real restrain to an overzealous or unwise use of authority. The Parliament is therefore not created to be "a rubber stamp" of the Executive. The parliamentarians have a duty to be independent minded and are not put there by the people to be "yes men" for their party bosses. The British had more than a hundred years ago derided members of parliament who followed party orders without questions. William Schwenk Gilbert in "Iolanthe" lamented:
"When in that House MP's divide
If they 've a brain and cerebellum too
They 've got to leave their brains outside
And vote just as their leaders tell 'em to"
In more mature democracies, it is not unusual for members of the House of Commons to cross the floor or those members who generally support the Government to speak and vote against the Government. It is not unusual for members of the US House of Representatives or Senate to sit on either side of the House in a division. It is because of this that a democrat like Joe Liberman can follow his conscience to endorse a Republican John McCain as presidential candidate. It is because of this that a President Nixon can be impeached for Watergate. The problem in Malaysia is that no BN MP has in 51 years crossed the floor of our Dewan Rakyat. The Government controlled media had ensured that any vote against the ruling party or even a dissenting voice is labeled as an act of treachery. The idea of BN MPs crossing has therefore been quickly castigated as immoral without examining whether good conscience demands that the MP cross the floor resolutely according to the needs of his constituents' interest or to remain in sterile stupor according to the dictates of his party bosses. The Watergates of Malaysia shall until then be destined to remain unearthed, unheard and unseen unless and until those elected to be the voice of their constituents find the courage to act according to their conscience. For so long as members of parliament from the ruling party conduct themselves as the proverbial three monkeys of "hearing no evil, seeing no evil and speaking no evil" about their party bosses, then the independence of Parliament does not exist. There is no check and balance by the Parliament of the Executive and only a "rubber stamp". The political tsunami that swept away the shackles to an independent judiciary must now also free the legislature from its bondage.
Constitutional Convention and Expression of Public Morality
The ability for members of parliament to cross the floor is the expression of public morality and not of immorality. Article 43(4) of the Malaysian Federal Constitution provides that the Prime Minister is to resign his cabinet upon ceasing to command the confidence of the majority in the Dewan Rakyat. Our Constitution is modeled on the British Westminster Constitution. It is a collection of constitutional conventions and customs. It is the outcome of centuries of constitutional evolution. It has distilled and crystallized the essence of the expression of public values and public morality. The convention to provide members of parliament with the ability to cross the floor and thereby bring about the removal of a government is thus an expression of public morality.
The ability to allow MPs to cross the floor recognizes that there may be a significant shift in public opinion that does not require fresh elections but needs to be reflected in the Parliament. The ruling party may be unable or unwilling to implement policies promised to the electorate. This can then be given expression through the MPs crossing the floor. It is this ability that curtails the power of party bosses and makes for a more vibrant political atmosphere. It provides for greater democracy and greater sensitivity to public opinion during the Parliamentary term otherwise it inculcates the Executive to become an authoritarian regime relying in the knowledge that it does not have to account to the people for the next five years.
The improper use of the ISA, the Sedition Act, the requirement of police permit to prevent the people from exercising its right of free speech and freedom of assembly and the abuse of power to shut dissent must not have to wait for general elections every five years. It is the duty of the 222 to ensure that the Executive power remains in check. It has become even more imperative that the BN MPs be able to vote according to their conscience. Yesterday, 12th September 2008, Raja Petra Kamaruddin, Selangor State Exco member and Member of Parliament for Seputeh, Ms Theresa Kok and the reporter from Sin Chew Daily News, Ms Tan Hoon Cheng who published the Ahmad Ismail speech have been detained under the ISA. Now is the time to act, the nation cannot wait for five years.
The Tectonic Shift after 308
Since the March 8 General Elections, the Barisan Nasional leaders have shown they are unwilling, unable or indifferent in addressing the challenges facing the nation. Despite, the global shortage of food and the increasing price of essential food products, the Barisan National leadership has refused to dismantle the monopoly given to Bernas in the privatization of the distribution of imported rice. With the global economic slowdown and rising inflation and the US going into stagflation, the BN leadership increased petrol prices by a massive and unprecedented increase of 70 sen causing inflation to jump to 8% per annum. It then did a flip flop by reducing the petrol price to 15 sen but this is too little too late to stop the galloping inflation led loose by the irresponsible increase. The property sector and the construction industry have come to a standstill due to the substantial increase in the price of building and construction materials. The SMIs are crying for help as the sudden jump in operation costs in electricity, petrol and transport costs threaten to put them out of business. Violent crime continues unabated after the General Elections. Murders, rape and robberies haunt the people every day. This indifferent and inept performance has led to a shift in public opinion of tectonic proportions after the March 8 General Elections. The Barisan Nasional leadership has failed. They have shown to be unworthy of commanding confidence of the majority of the Members of Parliament. Good conscience demands the BN MPs who still wish to hold true to the duty to their constituents have an obligation to cross the floor. It will be immoral for them not to.
The ability of the Members of Parliament to cross the floor and by doing so bring about a change in the government is part and parcel of the democratic process. It is a form of check and balance. It ensures that the sitting government must continuously be sensitive to the needs and opinion of the people or risk being removed before expiry of its term. The famous words that a democracy is said to be a "government of the people by the people and for the people" must include the right of the people to remove the government when it no longer represents the people. When Members of Parliament cross the floor acting according to the dictates of the people and not the dictate of the party bosses, they are acting morally and not immorally.
William Leong Jee Keen
Member of Parliament for Selayang
Parti Keadilan Rakyat
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