Don't get me wrong, I am supportive of having the recall election mechanism in place for many good reasons – to allow the voters who are highly dissatisfied with a certain elected representative’s performance or public behaviour to be able to act to recall the mandate.
Actually, it could be on any ground that can garner popular support that the voters deem the person is no longer fit or legitimate to represent them, be it integrity issue (that is, told a significant and damning lie in public or misappropriated public fund for private use), or moral issue (that is, acted or uttered racist or sexist words, showed indecent or unacceptable behaviour in public).
Although betrayal of voters’ mandate due to party switching could also be one big issue for recall election, the mechanism itself does not serve as a deterrence stern enough to prevent the phenomenon of party hopping affecting the ultimate outcome: change of government and reward for the defectors. Let me elaborate further.
One big factor why some political parties and politicians are more ready to accept the recall election proposal as an alternative to the generally dubbed anti-party hopping law is that the affected politicians can keep their seats until being challenged officially.
Several big hurdles for the electorates to overcome in order to recall a particular elected representative. The burden is on the challengers in terms of running the petition signature collection campaign passing a certain threshold of electorate size and then the signature verification processes.
It is by no means easy; the discontentment has to be high and popular enough to ignite people’s passion and sustain the campaign against the politician in question.
Just look at Bersih 2.0’s halted mock recall election campaign against Tebrau MP Steven Choong in August, this spells the difficulties of the public petition campaign to move against less high-profile party hoppers like Steven Choong.
If 10 elected representatives have “jumped ship”, let’s say recall elections have to successfully bring down at least five, opposition parties have to wrest back all the recalled seats in the subsequent by-elections to “restore” the balance and gain back the dominance in parliamentary seats.
For this series of events to go through, what is the probability of success? What if the defectors just gamble the chance for power and favours, and play a “catch-me-if-you-can” game?
Another consideration would be, who can fund and sustain the possible long campaign in all 10 constituencies (and what if the number is even bigger than 10)?
How long is a successful recall process going to take? This does matter a lot, as the idiom often goes “a week is a long time in politics”.
In my previous article, I found that the high-profile recall election case in Taiwan, Kaohsiung former mayor Han Kuo-yu took 234 days.
If the defectors were allowed to form a new government and be sworn in as ministers or deputies alike with elevated and consolidated power stature, could the balance of power not tip largely in favour of the incumbent seat holders with government resources and machinery at their disposal?
If it were an anti-party hopping law, defectors would have been stopped immediately, and no power grab is possible in this way, let alone letting the defectors build electoral advantages over a relatively long period (about eight months in Han’s case) spoiling the attempt or preparing for the possible recall.
With so many perks on offer, what is so deterrent about the recall election for the defectors not to gamble on?
India, Pakistan, Kenya and Uganda have the similar first-past-the-post electoral system like Malaysia, and also often face party hopping issues.
If recall elections would have been superior in deterring political defections, why these party hoppers-prone countries do not already adopt this measure?
Among the four aforementioned countries, only India has a recall mechanism at the state level but not at the most powerful lower house (Lok Sabha).
In fact, it is uncommon for the recall election to be used mainly to deter political defections in the world. It is mostly used to act against the municipal leaders (that is, mayors, governors) for performance or integrity-related issues.
One can look at the most active users of such recall elections in the United States. Although there are some good examples of successful recalls, that is also accompanied with a long list of unsuccessful recalls or failed attempts to qualify for recall elections. The latest case is California Governor Gavin Newsom who survived the recall.
One has to be cautious about the recall mechanism as a double-edged sword in that it could also be used by some civil groups to force out lawmakers that they do not like. Think Ikatan Muslimin Malaysia mobilising its grassroots to recall Segambut MP Hannah Yeoh.
Peru is another country where the citizens actively use their recall mechanism. Between 1997 and 2013, 45.5% of all 747 municipalities had experienced more than 5,000 activated recall referendums against locally elected officers. Welp (2014) explains the weakness of the institutional design of the mechanism that leads to a series of successful activation of recall referendums in Peru.
More importantly, it points out how political parties have the incentives to exploit the weakness to “gain power between regular elections”. Thus, the design of the recall election mechanism has to be made with careful and considerable deliberation to avoid being abused.
It is also fair to say that the current prevalently perceived anti-party hopping law is not without problems.
One often mentioned issue is that the elected representatives would be held even in tighter grip if the law becomes the new order, as the politician fears the consequence of being sacked and, hence, disqualified as the sitting member of Parliament or assemblyman if they do not toe the party (leader) line.
This statement appears as if the current party politics is not already showing this party toeing phenomenon, which may not be solved by an anti-party hopping law, nor a recall election can remedy.
At the same time, what I find most problematic is that the argument tars all politicians with the same brush that they are interest (read: seat)-bound and dare not take principle, conscience and public interest first.
However, I also acknowledge in some legitimate circumstances, anti-party hopping laws could be too rigid and punitive. For example, a splinter and realignment of ideology or principles for the Amanah lawmakers prior to the 14th general election.
In fact, the penalty of disqualification of the legislative membership is the core contention that was said to contravene the Federal Constitution on the freedom of association, as this was the judgment precedence set in the case of Dewan Undangan Negeri Kelantan v Nordin Salleh (1992) 1 MLJ 697.
What if there could be a third way, not requiring the party quitter to relinquish the seat immediately? He or she could continue to hold office until the automatically triggered by-election, reaffirming the mandate for the particular seat.
What is required to deter is the single-member party hopping resulting in the change of government, hence it is fair to temporarily suspend the right of the defectors to pledge new allegiance or support for the other coalition until the by-election results confirm the mandate for their seats.
To live up to the true spirit of representative democracy, automatically triggered by-election is important to find out who actually still commands the mandate to represent a particular constituency. This is a necessary, legitimate and straightforward democratic test, not a penalty.
Unlike the recall election, it is like playing many extra rounds of qualifiers with added difficulties in order to sit for the true test.
Why spend so much money and effort in arduous procedure and yet may not be an effective recall election, while one can have an automatically triggered by-election mechanism to find out who the seat should really belong to?
Let’s have the “specialist” reaffirming mandate law to deal with the party hopping and changing government issue while keeping the “generalist” recall election measure for other legitimate usage purposes.
71st article for Agora@TMI column, published on The Malaysian Insight, 20 Sep 2021
