This article first appeared in The Edge Malaysia Weekly on July 20, 2020 - July 26, 2020

MOHAMAD, 18, is eager for the next general election. Registered as a voter in the Damansara parliamentary constituency in Selangor, he has no issue with lawmakers leaving the ruling coalition to give a new political alliance the majority in parliament.

“MPs should not have to face a by-election if they switch parties, as long as the change in government is good for the country and the economy,” says Mohamad, who delivers food parcels for a living, when asked whether a law to prevent party-hopping is needed.

In contrast, pro-democracy groups have been calling for changes to Malaysia’s election rules to deter lawmakers from switching camps after an election.

Proponents of recall elections say an elected representative who changes parties after an election should have to get a new mandate from his or her voters to prove that they support the switch.

The process, which is provided for in a number of countries, has been proposed numerous times since the Pakatan Harapan (PH) federal government fell in February when two blocs of MPs from Bersatu and Parti Keadilan Rakyat (PKR) quit the coalition in a realignment called the Sheraton Move.

Since then, four Pakatan Harapan state governments — Johor, Melaka, Perak and Kedah — have also fallen to the new ruling coalition Perikatan Nasional.

Civil society groups and opposition leaders have called the forging of new political alliances midway through the term of parliament as undemocratic and a betrayal of the voters’ mandate.

“Such reconfiguration of the component parties mid-term through the shifting of alliances and defections has nullified the election manifesto of PH, the Buku Harapan,” the groups, led by the coalition for clean and fair elections, Bersih 2.0, said in a statement when the political coup took place.

Giving voters power to fire politicians

Political scientist Dr Wong Chin Huat says recall elections can balance the power that voters give their elected leaders by putting the power of dismissal back in the people’s hands.

“In a job contract, the employer and employee can both decide to end the contract by serving notice on the other party,” he says. “In Malaysian politics, however, only lawmakers can quit, but voters have to continue paying lawmakers who jump parties or sleep on the job,” says Wong, an expert on electoral systems at the Jeffrey Sachs Center on Sustainable Development, Sunway University.

“If elections are held to hire politicians, recall elections give voters a chance to fire them,” he says in comments to The Edge.

Wong cites a recent example in Taiwan, where a recall election was triggered when the mayor of Kaohsiung city, Han Kuo-yu, contested for the presidency within months of being elected as mayor.

Under Taiwanese law, the verified signatures of 1% of the electorate are required to initiate a recall petition. Within two months, another 10% of voters must endorse the petition in order for the recall election to be held, says Wong in a commentary released to the media.

There is a third threshold, he explains. To sack an incumbent and hold a by-election, the number of voters who agree with the petition must not only be more than those who disagree, they must form at least 25% of the electorate.

This threshold was initially criticised as too low by Han’s supporters, since 25% of the voters would translate into 574,996 votes, much fewer than the 892,542 votes Han won in 2018.

His well-wishers feared that a low turnout could see him being ousted by a smaller number of voters who were staunchly against him. However, 939,090 voted in favour of the recall on June 6, solving the question of legitimacy. The by-election will take place on Aug 15.

Similar recall elections are found in at least 19 states in the US, British Columbia in Canada, Japan, Taiwan, the Philippines, Switzerland, Ukraine and Peru. In most places, the recalled incumbent would not be allowed to stand in the by-election, or may be barred for a certain period.

In the UK, voters do not have the power to force recall elections, but proceedings are initiated by the Speaker if an MP is found guilty of certain offences. It then needs only 10% of voters’ signatures to recall the incumbent, who nevertheless can also stand in the by-election.

The Taiwanese rules could be a guide if Malaysia wants to introduce recall elections, says Wong. A requirement that 1% of voters are needed to initiate a petition will make the process accessible to the people.

Requiring an additional 10% of voters to endorse the petition would ensure that the provision is not easily exploited by well-funded groups to harass a leader who will not play ball.

However, the requirement that 25% of voters must support the leader’s removal for a by-election to be called may be too low, says Wong.

“For the third threshold, I would propose that it should be higher than in Taiwan. It could be set at 50% of all registered voters or the total votes won by the incumbent, whichever is lower,” he says.

Even with these thresholds, the recall is subject to manipulation and abuse. In Australia, the debate over recall elections was taken up in the New South Wales parliament in 2010.

In a parliamentary brief, constitutional expert Prof George Williams is cited as warning that the recall could be exploited by pressure groups using signature gatherers and mass media advertising to harass elected representatives.

Setting rules on recall elections

Abuse of the system can be mitigated by setting limitations on campaign spending and the use of signature gatherers. However, such measures may be subject to legal challenges.

In the US, the state of Colorado’s attempt to prohibit the payment of people to collect signatures was struck down by the Supreme Court as a violation of free speech and assembly.

Rules must be set, say election experts, so that the recall vote is not permitted too soon after the previous election — to give the incumbent time to fulfil the voters’ mandate — or too close to the next general election in order to save public funds.

To alleviate concerns that the recall mechanism may be abused to overturn narrowly won seats, Wong suggests that a recall may be pursued on only three grounds.

“These are for party or coalition hopping, conviction for non-compoundable offences but where the incumbent has been let off with a fine of below RM2,000 or a jail term of less than one year (and hence is not disqualified by the Constitution), or absence from the House for more than 80% of the time in a period of six months,” he proposes.

If party-hopping becomes the norm or involves lawmakers switching sides en masse, says Wong, parties will become weak.

“Recall elections help to curb the problem by affirming the value of a party or coalition label but they do not resolve the issue entirely,” he says.

A more comprehensive solution must involve other measures. One improvement could come from a change in the electoral system so that voters can give a direct mandate to not just their favourite candidates but also their preferred parties, says Wong.

Another step would be if equal public funding were given to all parties and all elected representatives, he says.

Further measures include limiting the number of ministers and deputy ministers that can be created and prohibiting paid appointment of MPs to government agencies or government-linked companies, to limit the gain of party hoppers.

Constitutional objection

Recall elections are seen as an alternative to rules against party-hopping, which run into a constitutional hurdle.

In 1992, the Federal Court ruled that a provision against party-hopping in the Kelantan state constitution was null and void because it infringes on the freedom of association that is enshrined in the Federal Constitution. A similar provision in the Penang state constitution is unenforceable for the same reason.

At a recent Bersih web forum on the issue, former minister Datuk Seri Abdul Rahman Dahlan suggests that the constitutional objection could be resolved through the courts. A ruling to exclude elected representatives from the definition of an individual in Article 10(1)(c) of the Federal Constitution could be a solution, says Abdul Rahman.

As a representative of the voters as a group, he argues, the elected leader may be seen as different from an individual.

Citing the Federal Court ruling, Minister in the Prime Minister’s Department Datuk Takiyuddin Hassan said on July 14 that an anti-party hopping law would need to be studied further in the light of the constitutional guarantee of freedom of association.

Wong suggests that since Pakatan Harapan leaders have criticised the Sheraton Move, they can introduce laws for recall elections in Selangor, Penang and Sabah, where the coalition and its ally Warisan hold the supermajority needed to change their state constitutions.

This is possible, he notes, since disqualification of state assemblypersons is a state matter under the Eighth Schedule of the Federal Constitution and was not challenged in the 1992 Federal Court case.

It is noteworthy that earlier this month, the Pakatan Harapan presidential council, when announcing that it would back PKR president Datuk Seri Anwar Ibrahim as its candidate for prime minister, also gave Anwar full scope to hold discussions with all parties to regain the mandate it won in the last election.

Analysts see the country’s political turbulence and weak global demand as factors for their cautious outlook on the economy reviving strongly in 2021. A Fitch report on Malaysia released in June blames political uncertainty, a stalling reform momentum and a shift towards populism for holding the country back from its goal of rising up the economic value chain in the next decade.

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