Original question:

The Government's Draft proposal for the Electoral Law in East Timor includes a loyalty clause reproduced below:

Article 16 - Forfeiture of Seat:  

A Member of Parliament elected to the National Parliament on a list presented by a political party or a coalition of parties and who, after his or her election, transfers himself or herself to another party or is dismissed by his or her party in accordance with the internal procedures of the latter, shall forfeiture their seat.

I am not generally favorable to this kind of clause, and it might well be misused in the context of East Timor. However, I have difficulties in obtaining comparative information.

So I have a few questions/requests to make:

1. Do you know of an article/web site where a comparison or analysis of such clauses has been made?

2. Which countries that you may know apply such type of clauses?

3. What is your personal opinion about them? 

Responses were received, with thanks, from:

• Ayman Ayoub
• Francesca Binda
• Michael Maley
• Maria Helena Alves
• Maja Tjernström
• Alan Wall
• Ron Gould
• Domenico Tuccinardi
• Tim Meisburger
• Kadirgamar-Rajasingham Sakuntala

• Jose Maria Aranaz

Links to related resources:

• South Africa: Case Study on Floor-crossing
• Floor Crossing is Bad News for Democracy
• Floor-crossing in South Africa and its Effects on Democracy (in German)
• Floor-crossing in South Africa: Voters vote for People and Parties

• Australia: Research Note about Floor Crossing in Australia 1950-2004 (2005)
• Australia: Crossing the floor in the Federal Parliament 1950 - August 2004
• ACE Encyclopaedia: By-elections

Quote from the ACE Encyclopaedia on "floor-crossing":

"The term floor-crossing can be used in two different ways. The definition used here is the process when one Member of Parliament (or Council) ultimately leaves his or her political party in order to join another party or become an independent candidate.

The term was first used to describe the process when Members of the British House of Commons crossed the floor to join the group of people (members of another political party) that was seated on the opposite site of the floor.

In some cases, the term floor-crossing is used to denote the singular event of voting with another party on one particular and special question. This is the case in a few countries, where the Members of Parliament vote through their seating position and are allowed to change their seat for every vote, particularly in decisions without required party discipline.

When Members of Parliament leave their political party, the question is what happens to the seat".

Individual responses in full:

Ayman Ayoub:

In my opinion the main aspect to be taken into account on this subject is related to the electoral system that is in place in each case. Whenever the system implies that the voter’s election is for the person (majority systems, open lists systems, preferential and transferable votes, etc) forfeiture of seats should not be advised. Therefore, one may conclude that this is a measure that should only be implemented where the electoral system that is established in the electoral law implies that the voter’s election is for a political party or other electoral CLOSED list, in which case it is easy to conclude that the voter is actually voting for a political party or coalition rather than for the individual candidate. Even if this arguable, the fact that the closed list clearly and absolutely limits the choice of the voter to the entire list may be a strong argument to introduce the forfeiture measure.

Spain is a very good example for this. In the national elections (elecciones a las cortes generales) there is a combination of both cases. For the elections to the lower chamber (Congreso) the system used is a closed list proportional one, where voters elect a list without any further choice of individual candidates. At the same time, for the election of members of the higher chamber (el Senado) a FPtP system is used, obviously with open lists, where voters may chose a number of candidates that is equal to the number of seats assigned to each constituency less 1 (this being a corrective measure), regardless the candidates’ political affiliation, this means that voters cast their vote for individual candidates and have the chance to chose them from a number of different party lists. In the first case (Congreso) forfeiture of seats should in my opinion be advised, while in the second case (Senado) should not.

On a different aspect, it seems that forfeiture of seats tends to be sought more strongly in post conflict and less consolidated democracies, where the political party system is still not a well established and solid one.

Francesca Binda:

I agree with Ayman.  I believe it depends on the nature of the electoral system – party vote versus candidate vote. It also depends on the nature of candidate selection by the parties.  If there is a genuine, internal democratic process by which party members chose candidates for the legislatures, one can assume that elected representatives reflect the party’s choice.  I would be more comfortable with MPs having to vacate seats if they leave a party which democratically elected them to represent.  If however, candidates are selected by the leadership alone (i.e. one or a few people), they are hostage to the whims of that leadership.

I think the Hungarian parliament requires elected representatives to sit as independents for 6 months if they chose to leave the political party for which they were elected.  This solves the problem of individual MPs “shopping” themselves out to the highest bidder and choosing to leave the party.  It does not solve the second problem of the East Timor proposal – when the MP is removed from the party.

Michael Maley:

Horacio might wish to look at Part VII of Papua New Guinea's (PNG) "Organic law on the Integrity of Political Parties and Candidates". 

In PNG, the long-standing problem has been that parties are too weak, not too strong.  Governments have come and gone as Members of Parliament have abandoned the parties under whose flags they were elected, and joined another party or coalition.

I rather think that Indonesia had a similar provision pre-1998, since in 1998-99 it was widely perceived that there was a need to liberate members of Parliament from what had been seen as excessive party control. I'm not aware of a website on such clauses, though one might well exist.

In my view the value of such clauses has to be assessed on a case by case basis.  While they might provide a mechanism which enables strong parties to enforce internal discipline, they may also provide some protection to small parties which run the risk of being swallowed up as a result of predatory attempts by larger parties to persuade or induce the smaller parties' representatives to cross the floor.  (As always, see Cambodia.)

Maria Helena Alves:

As you know I am not a specialist on electoral systems, but I do think that the electoral law should be clear on this issue of forfeiture of seats, one way or another.

Here, in DRC, we witnessed a related problem with the president of the parliament: he decided to quit his party, but then he wanted to continue as both member and president of parliament.

After what it seemed as lots of negotiations and a consultation to the Supreme Court (who was of the opinion that he should quit his position as head of parliament) he ended up quitting both, so called for the good of the country… His party nominated a person for his place who took over both positions: membership and presidency.

So, I agree with Ayman's approach.

Maja Tjernström:

Leaving your political party and either joining another or becoming and independent MP is allowed in most countries, and usually called floor-crossing. There are three ways to decide what happens if an elected MP leaves the party:

1. The individual MP retains the seat;
2. The party retains the seat and fills it (from the original list or per their own decision);
3. Neither the party nor the person keeps the seat. (either the seat remains vacant until the next electeions or a by-election is held to fill the seat)

Ayman is right about the difference between different electoral systems, but examples where floor-crossing is prohibited exist from both PR, Majority/Plurality and mixed systems. Let me give you a few examples:

PR systems:

• In Macedonia (List PR system), the party retains the parliamentary seat if a person leaves or is expelled from his/her party. The seat is filled by the next person on the original list.
• In Sri Lanka (List PR system), the party also retains the seat. The MP is replaced by the next person on the original list.

FPTP systems:

Surprisingly enough, I have found more prohibitions of floor-crossing in countries with FPTP systems than in List PR systems:

• Kenya: The MP loses his/her seat, but the seat is not retained by the party. A by-election is held for the seat.
• Bangladesh: same as above
• India: same as above
• Pakistan: same as above
• Malawi: same as above
• Zambia: same as above
• Zimbabwe: same as above

Mixed systems:

• In Senegal, which has a Parallel electoral system, MPs are not allowed to switch parties and retain their seats. The seats are retained by the party and are filled from the party lists (in case of the PR seats) or by previously identified stand-ins (for the FPTP seats). If no stand-ins are available a by-election will be held for the seat.
• In Lesotho, which has an MMP electoral system, MPs elected through FPTP (80 seats) are allowed to switch party, but those elected through PR are not allowed.

Considerations:

• Party strength: If the party can expel an MP from the party and retain the right to the seat, this obviously strengthens party (leadership) power. This may be good where the party system is weak and fragmented, but can prove to be problematic from a democratic pint of view, especially if (as Francesca noted) leadership does not consult with members on candidate selection. The party whip can be too strong and can threaten MPs who want to speak up against the party line on a particular issue.
• Internal party democracy: One can argue that internal party democracy is strengthened if the party membership decides on the candidates both to the original list (or constituency) and to the replacement.
• Retaining original party balance: If floor-crossing is not allowed and the seat stays with the party, this is in a way respecting the voters' decision on party balance in the legislature.
• Gender considerations: If the country applies a quota to enhance women's participation in politics, it is interesting to know if the person who replaces him/her has to be of the same sex to retain the gender balance.
• Links to constituencies: If floor-crossing is allowed and the original MP can keep his/her seat, this strengthens the notion that they (individually) represent the particular constituency, which is good for accountability.
• Dominant party systems: Floor-crossing tends to favour the ruling party and thus the government. Some countries have decided to ban floor-crossing to avoid the risks of MPs being "bought" (literally or figuratively speaking) over to the ruling party at the expense of a small and fragmented opposition.
• Corruption: Floor-crossing is often perceived as fostering bribery and corruption, thus also reinforcing an alienation against politics and politicians, who are seen to switch parties for personal gain.
• Cost of elections: The solution to use by-elections to fill the seat is tempting, but also costs a lot to organize and administer, and can lead to voter fatigue.

Other interesting cases:

• In Nepal, a MP can leave his or her party and retain the seat only if 40% of the original party MPs decide to leave at the same time and either form or join another party.
• In South Africa, floor-crossing was originally prohibited but is now allowed but only during two two-week periods during each (five-year) term, and only if at least 10% of the party's MPs decide to leave the party at the same time. ACE has a case study on floor-crossing in South Africa where you can read more.

Alan Wall: 

I'm not aware of any broad comparative study - the IPU Parline database only has a general 'can MPs lose their mandate' datafield for each country, without specifying for what reasons.  There is some discussion, including the Commonwealth's Latimer House Guidelines from 1998,  in the IPU's large  publication 'Parliament and Democracy in the 21st Century' I've extracted and attached the relevant bit.

I have a slightly different approach to Ayman. I'd agree that under electoral systems where voters in some manner vote directly for individual candidates (FPTP, AV, open list PR, etc) then forfeiture of a seat in parliament due to an elected representative joining another party/becoming an independent representative, or at a party's instigation is not appropriate. 

But I'm also not supportive in blanket terms of forfeiture provisions where the election system requires voters to vote only for a party. I'd be carefully looking at which path has the more positive effect on democratic consolidation, parliamentary independence and party development as well as stability and maintaining respect for - and there are country examples that can be pulled out to support both sides of this argument, each within its own specific cultural/political context.

I'm also not sure that the western European world is where we should be looking for relevant examples.

My personal view (very much conditioned by my context) is that forfeiture is only a prudent path in extreme cases - such as PNG (see below) - where forfeiture may be a necessary weapon to combat unstable and money politics based government. I also believe that where forfeiture is being considered,  there may often be a useful distinction to be made between forfeiture by those representatives who leave to join another party/become an independent representative, and forced forfeiture by a party on its member representatives.

Here are a few examples to add to those already sent to you. 

Indonesia allows replacement of elected representatives - under any circumstances deemed appropriate by the relevant party. Reasons for forfeiture/replacement are not limited to cases where a representative resigns from or is expelled from the relevant party - but it covers these conditions. This has been retained through the change from closed list PR to the current open list (of a very limited fashion) system. This 'replacement' provision is one that is abused - I wouldn't say regularly but certainly too often for comfort - to eliminate those not in favour with the current ruling cliques within various parties., or to slide into parliament those more in favour, as rewards fro current services rendered etc.  The result is not necessarily good for pluralism, party development and especially intra party democracy.

The South African experience may be relevant to your views - as a different method of dealing with this issue in a closed list PR system. Amendments to the South African constitution of February 2003 created the opportunity for 'crossing the floor' - ie representatives switching parties, during two windows of a parliamentary term. The amendment was introduced following constitutional problems in attempting to deal with this issue through legislation in 2002 (details are on the Constitutional Court website indexed at http://www.constitutionalcourt.org.za/uhtbin/cgisirsi/x/0/5/0) and an ensuing intensive public debate. To quote from the EISA summary of these amendments:

The Constitution of the Republic of South Africa Fourth Amendment Bill, 2002, passed into law in February 2003, permits members of the National Assembly and of the nine Provincial Legislatures to switch their allegiance from one party to another, notwithstanding the fact that the members of these legislatures are elected on political party lists. This may only be done during certain periods and under specific conditions:

• In order to cross the floor from one party to another (or to form a new party, or for two parties to merge) the person concerned, or group of people, must constitute at least 10% of the membership of the party that is being forsaken.
• This floor-crossing may only take place during two periods of 15 days each: "from the first to the fifteenth day of September in the second year following the date of an election of the legislature" and "from the first to the fifteenth day of September in the fourth year following the date of an election of the legislature" (Government of South Africa 2002).

A summary for the South African experience during a 'floor crossing' window is on the EISA web site at:

http://www.eisa.org.za/WEP/souresults2004b.htm

In total 25 members of a national chamber of 400 switched allegiances. Significant numbers of members of provincial and municipal chambers also switched. An attempt via private members bill has been made in 2006 to rescind these constitutional provisions, quoting the high number of inter party movements in 2005.

There are others - such as Paul Graham at IDASA who was involved in the constitutional arguments of 2002 -  who would be able to take you in detail through the pros and cons of this battle as it has been argued  in South Africa. There is also a case study on 'floor crossing' in South Africa  in ACE - dealing with benefits/disadvantages and noting the effect it has had in South Africa of augmenting the power of the largest parliamentary party -  at:

http://www.aceproject.org/ace-en/topics/pc/pcy/pcy_za

The other example that may be useful from a regional perspective may be Papua New Guinea, with a history of weak personality and 'power as an end in itself' based  parties, widespread transferring of allegiances and buying of representatives' loyalties making stability and  continuity in government unachievable.

The issue was approached from two directions.

1. votes of no confidence in a government are now banned for the first 18 months of the 5 year parliamentary term, and if passed in the 12 months preceding a scheduled election result in a new election rather than a transfer of power within the existing membership of the parliament - thus limiting the window for a realignment of representatives to parties within the existing parliament to cosily re-divide the spoils of power; and 
2. under the 1999 Law on Integrity of Political Parties (great name) elected representatives who switch allegiances to another party during the parliamentary term and automatically do not automatically retain their seat in parliament.

Full details are covered in a comprehensive article by Ben Reilly on PNG electoral reform, see:

http://www.crawford.anu.edu.au/pdf/breilly3.pdf

but the penalties for floor crossing and how they are imposed may be of specific interest:

Any MP elected as a party member faces a range of penalties if they join another party or become an independent during the course of the parliament. In such a case, a ‘leadership tribunal’ decides whether their grounds for resignation from their original party were valid – which, according to the legislation, is only possible if the party has breached its own constitution or been declared insolvent. MPs elected with party endorsement must also vote in accordance with their party position on key parliamentary appointments.

In effect, this means that each party member must vote with a majority of MPs from that party in four areas: on a vote of no-confidence against the Prime Minister or ministry; on the appointment of a Prime Minister; on a vote for the national budget; and on a vote to amend the constitution. Members can abstain from a vote, but if they vote against their party’s position they face a range of possible penalties, up to and including dismissal from the parliament. Given that the majority of Papua New Guinea parliamentarians fail to be re-elected at election time, it is unlikely that many of them will risk this option.

This in a system that until 2002 was FPTP, and has now switched to a limited AV system.

Ron Gould: 

Offhand I am not aware of any specific clauses related to this situation, but I did run into the problem (in Kenya, I believe) where one party bribed candidates of other parties both before and after the election to switch to their party following the election.... thereby achieving a majority from a minority situation.

Coalitions are one thing, but if a candidate runs for one party and is supported financially or otherwise by that party and is elected either by the voters, or because of being on the party list, it seems logical to me that the seat belongs to the party and not to the candidate, and if vacated by death or defection, the next candidate on the list should replace the defector or a by-election held.

This would discourage abuses of the electoral system.

Domenico Tuccinardi:

I have read with interest all the interventions. I would tend to agree with Alan that the floor-crossing rule is a rather anti-democratic one under various types of system of representation, but a certain usefulness of it might be seen in very specific cases.

In my personal experience, the floor-crossing rule, that was intended but not made explicit in the regulations that governed the first Bosnian elections, but it had to be made so in the following ones as the nationalist parties were literally keeping hostages the elected representatives at any level and under many variations of mixed systems that we experienced there.

Allowing the elected candidates to cross floor in Bosnia really opened up room for a better democratic dialogue and raised the political profile of many elected candidates who felt freer to go against the nationalistic standpoints of their parties of origin, even though the price to be paid was sometimes some seat-buying exercise by wealthy political parties and some “political nomadism” by some politicians in seek of easy glory. I believe similar considerations can be made about the Kosovo elections.

In a more consolidated western democracy as one might consider Italy (in full political transition from a multi-party mixed-proportional system towards a bipolar majority system), floor-crossing is a very lucrative (in terms of positions obtained in governments) and crucial activity for the stability of many recent governments.

As Alan said, the most important aspect here is to see what provision is likely to be more positive for the democratic consolidation in East-Timor. I believe that the East-Timorese context is more similar to the Indonesian one (that I am fairly familiar with) than the PNG one. In this sense, I personally consider that it might be more beneficial for the democratic development of East Timor if the floor-crossing rule was allowed (may be with some limitations like in SA), or in other words, if the forfeiture clause was not introduced.

Tim Meisburger:

Just wanted to point out the representation issue. In FPTP the people elect an individual to represent their interests. If that individual thinks it will be in the interest for his or her constituents to switch parties, then that’s okay.

But in PR systems the voters select a party to represent their interests, and the legislators elected represent the party in government, not the people. Consequently, in my opinion, allowing floor crossing in PR systems would defeat the expressed will of the people.

Michael Maley:

I'm prompted to rejoin the fray by Tim's message.  While his point about representation is an interesting one, I'm not sure that things are always as clear cut as they seem.

Consider, as a thought experiment, a PR system in which a party runs in opposition to the incumbent government.  The incumbent government is returned, and some time later buys off the opposition party to join a grand coalition, intended to wipe out genuine opposition.  If a principled member of the opposition party decides to stay in opposition rather than hop on the gravy train, it seems to me that that member is doing a better job of keeping faith with the expressed will of those who elected him than his colleagues.

Again, I suspect there are precedents for this in Cambodia. This highlights that leaving a party and floor crossing are not always synonymous. 

Sometimes you don't leave the party - the party leaves you.

Kadirgamar-Rajasingham Sakuntala:

I hope this is not too late to add some info on this. I recall that the first Constitution of Bangladesh prevented floor crossing (and if I re-call) required such a candidate to face a by-election if s/he crossed. Even if it is in a FPTP context, it is hard to know if voters voted for the candidate alone or the candidate + the party agenda. A by election forces the floor crosser to re-think carefully and the result will eventually validate if the voters were voting for the candidate, the message, the party or a combination of all the above.

Sri Lanka (the only country in SA which has PR), under the 1977 constitution also had a prohibition for floor crossing but when an opposition MP wanted to join the government (which already had a 4/5th parliamentary majority) amended the constitution to allow this provided that a Parliamentary Select committee approved it (Needless to say select committees have a greater governmental component).

Today the Courts can adjudicate where parties sack the person who crosses over to determine of the person (though deprived of a place in his/her old party) can maintain the seat and be in a new party. - The courts have become highly politicized, rulings are always in favor of the govt and Parliament has become highly discredited as it is cash or position within the new govt that are used as inducements to ensure the crossovers.

Yet to freeze dissent in PR systems is also extreme - how do MPs express concerns on positions that our counter to their party's positions? Voting against a govt measure is sanctioned and also crossing over. So is the only choice available to the free thinking dissenter - the choice of leaving  his / her seat, the party and committing political Hara-Kiri?

Can by-elections be rolled into a PR system?

Jose Maria Aranaz: 

One puzzling element of the Spanish system is that, there was a decision from the Supreme Court stating that the seats (even if elected in a closed list system) belonged to the individual, not to the party.

The Constitutional Court Decision which declared unconstitutional Article 117.1 of the Law on Local Elections by which a Local Assembly member which voluntarily abandoned or was expelled from a list would be replaced by the next one in the list. By this decision the safeguard against benchcrossing was removed.

This has triggered a traffic of elected members, mainly in local councils, changing sides, the so-called "transfuguismo" which has very much contributed to erode public confidence in the political party system.