THE root of our bicameral system is much associated with Britain’s Westminster parliamentary system. It is relevant then to discuss this perspective while referring to its past. Before the formation of the constitutional monarchy system, administration in the UK was based on the feudal system. 

Society back then started from the bottom most: the peasant, landlord, baron, knight and king. Later, after the formation of the Magna Carta by King John, the government recognised the rights of its citizens. 

This can be seen in John Locke’s commentary on the social contract. He stated that the people granted power and authority to their king and in return, the king would wield this power in the interest of the people. 

Later, as constitutionalism developed, people no longer granted power to kings and monarchs. They granted their power to elected representatives. Here, we will see the important and deep concept of constituency as part of the electoral system.

The main purpose of a constituency is for elected representatives to voice the concerns of the people in an assembly. This is in line with the concept of representation by delegation, where people in large groups elect one person to represent their interests and motives.

Question then, whether our practice of by-elections are in line with the spirit of constitutionalism. 

One view is that elections must be held only for genuine purposes of representation. Such is seen by respecting the five-year tenure in a seat. The recent three by-elections in Sg Kandis, Balakong and now, Port Dickson, were or will be held in the middle of the said tenure. 

The main spirit of constitutionalism is to ensure elected representative fight for the interest of their constituencies. Where an election is launched as political manoeuvring, interest will be of question. Is it for the interest of the people or interest of politicians?

I find this concern to be well-based. As by-elections were and will be held, many candidates are not even locals of their constituency. This locality is not even referring to their origin or some sort, but their proximity to local issues and interests. In fact, such proximity is not even a factor for politician in considering where to contest; instead, the safety of those seats are their main concern.

In short, by-elections will not only be a fight between two parties but a fight between two interests: the public’s and politicians’. It’s fair prudence that where these two interest collide, public interest must always prevail. 

From the legislative view, the formation of anti-by-election law is not likely to happen. This is mainly due to the fact that the current mechanism is well-supported by virtue of various articles in the Federal Constitution, namely Article 51 for resignation and Articles 48, 49 and 52 for disqualification. This right was firmly endorsed by the Supreme Court of Malaysia in 1992, which mooted that anti-hopping laws would be unconstitutional as it infringed on the right of association. In that tendency, an anti-by-election law would suffer similar consequences. 

In our current political situation, we can see how fluid political moves can be. There are two alternatives to avoiding abuse of elections. First is amending our Constitution. Yes, the current law is in the spirit of protecting freedom of association. Question is, is it a fair right when it offends larger public interest? People are under the impression that they will be electing a person for their full tenure, without any unnecessary vacancies. When politicians opt to exit, this is as good as a breach of contract, under misrepresentation. We are unfortunate, however, that this moral contract is not likely to ever be recognised in law.

Second, political parties may launch internal policies to stop this tendency. They may set a ban on members who do so. Politicians, if they really care about the people’s interest, should consider being more of a “gentleman” and start practising better politics. – September 15, 2018.

* Amar Hilmi reads The Malaysian Insight. 

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.