I have been holding off on this follow-up posting to my earlier article titled ‘A mockery of our democratic institution‘ for long enough. I was especially prompted to post it after that article was picked up by Malaysiakini (read: picked up by Malaysiakini a week after my original posting, and NOT me going to Malaysiakini with my thoughts!). After what has happened to my comrade Elizabeth Wong, I need to get this out.
Some people have read into what I did not write, just like how some are inclined to only pick up what a speaker did not say. Those who disagreed with my defence of Anwar argued that I should not be defending defections. For the record, I never defended defections nor did I discuss the morality of defections. I only presented the differences in approach and the mode of takeover, executed by Najib and attempted by Anwar. My stand was built within the confines of the constitution of the day. Whether you like it or not, the law of the land today does not prohibit defections. As such, defections will happen, party-hopping will happen. What is required of us is to understand constitutionally the following: what do we allow our political leaders to do when such defections happen?
When a nation does not have an anti-hopping law, expect hopping to happen. But hear this loud and clear: I am not condoning defections! In fact, I am in full support of an anti-hopping law and necessary amendments to the current law. If we have an anti-hopping law in place, then frogs will not jump. Even if they do, they cannot remain in their seats without a fresh mandate from the voters. Simply stated, a proposed anti-hopping law must mandate a by-election for any seat of an elected rep who has switched parties. Defections are morally and ethically wrong. No two ways about it but that moral and ethical judgment is not going to stop anyone from defecting. In fact, within the boundaries of our current law, a defector is in effect exercising his or her right of association and dissociation!
So what do we do today, when our laws allow party-hopping? We have the constitution which can guide us on how to proceed when defections happen. The constitutions of the state of Perak and of the Federation of Malaysia provide clear directions on how to proceed when a leader of the respective assembly loses a confidence of the majority of the assembly members, i.e. when defections happen. Those directions set forth in the respective Constitutions must be adhered to. And that is the minimum of which we expect of our political leaders today. Anwar met that minimum expectation, Najib did not. A confidence majority in a state assembly or Parliament is not obtained or validated via a press conference. That is not constitutional. Displaying 4 defectors with the state BN chief to prove that there’s a change in the majority in the state assembly is not constitutional. So is the case if Anwar had with him the names of defecting BN MPs on a piece of paper and held a press conference to announce it. That is also unconstitutional. Anwar’s failure does not make him a villain, as much as Najib’s success does not turn him into a hero.
I am stating here the extent of respecting the rule of law. As much as I feel that the laws are inadequate at the moment, I also call for a respect of the rule of law. And if you respect the rule of law, you have no legal standing to stop defections from happening. I do not have to be pro-Anwar for the defence of how he attempted to handle the crossovers of Sept 16. I only have to be pro-justice and to respect the rule of law. Respect the right of association and dissociation that is enshrined in the Constitution and not rob someone of that right. When you do not accept a defector into your party, you are robbing that elected rep of this right. This is exactly why we need an anti-hopping law. With the law in place, it does not mean that one is robbed of the freedom of association, but instead one is not allowed to remain an elected representative without the re-endorsement of the people. This is what we want: an anti-hopping law and necessary amendments to the Constitution that will grant more power to the people.
Hear this loud and clear too. The most democratically constitutional thing to do in a federal parliamentary democracy with a constitutional monarch is to go back to the constituents. Not to go back to the monarchy. Pakatan has always been prepared to go back to the voters. If Sept 16 was successful, Pakatan was prepared for a fresh, snap election. For the 4 defected state seats in Perak (including Bota), Pakatan is prepared for by-elections. If the 31 BN MPs were to come out today and pledge their support for Pakatan (as allowed for in the Constitution), do you think Pakatan Rakyat as a political coalition with the will to govern and to bring change to Malaysia should act unconstitutionally and reject the applications of these defectors? No. But we will ensure that we receive endorsement from the monarchy to go back to the people.
There is great danger in attempting to attain moral high grounds at the expense of the rule of law. This holds true for the Sept 16 plan, and more so for Elizabeth Wong. If Pakatan Rakyat were to attempt to build a moral high ground of not accepting defectors, we are doing that at the expense of our current Constitution. If you are to judge Elizabeth exclusively on moral standards, then you will have no choice but to demand her resignation. Because morally, and mind you, everyone has his or her own moral standards, it is not acceptable to some people for her to be found unclothed in her bedroom with her boyfriend. Never mind if she was sleeping or not, but can anyone show me the law which prohibits her from continuing to serve as an assemblyman?
What grave injustice would it be if that sort of moral judgment is to be handed down to Elizabeth. You will attain a moral mountain, but at the expense of justice and the rule of law. I urge Malaysians to carefully consider the morality which you preach.