The Question
This question was posted on behalf of Melle Bakker, EMB member, the Netherlands

In the Netherlands, members of parliament are elected on so called "open party lists." It sometimes happens that for some reason an elected member decides to quit his or her party and to stay on as an independent member, or to switch party.
Some people argue that such a move away from the party (list) should not be possible, stating that the seat mainly belongs to the party. Political parties often feel "robbed of a seat" because of this kind of behaviour.

My question: are there countries in the world that do not allow an elected member of parliament to stay on as an independent member once he or she breaks with his/her original party?

Summary of responses
Many examples are given of countries where it is not allowed for a member of parliament (MP) to retain his or her seat and become an independent MP in the event of leaving their party, including the following: Guyana, India, Ghana, Cape Verde, Kenya, Malawi, Nigeria, Zimbabwe, Cameroon, Namibia, Seychelles, Sierra Leone, Zambia, Bhutan, Cambodia, Kazakhstan, and Kyrgyzstan and Thailand.

It is noted that the Canadian Parliament is currently debating a bill on this very issue.

In Uganda, an MP automatically loses their seat in such a scenario and a by-election is arranged. The individual who has left their party is, however, allowed to contest the by-election as an independent or for another party. This law was party introduced in an attempt to combat corruption and the buying of MPs to cross the floor.

One expert makes the distinction between those African countries which strip an MP of their seat if party membership has been revoked and those who lose their seat upon resigning from their party.

Although India has a “reasonably well crafted” anti-defection law, a former Election Commissioner of India believes that decisions on defections are often made by the Speaker of the House and are politically influenced.

The importance of public opinion on this matter is highlighted, and the example of Sweden is given, where even though there is no legislation to stop an MP leaving their party, becoming an independent and retaining their seat, public opinion would view such behaviour as unacceptable and intolerable.

According to standards set by the Organization for Security and Cooperation in Europe (OSCE), it is an individual who owns the mandate of a seat in parliament. If a seat is to be taken away for leaving the party, then this should be done “through a formal judicial or other adjudicative process laid out under the relevant legislation.”

Examples of related ACE Articles and Resources
Encyclopaedia:
• Floor crossing 
• South Africa: Case study on floor crossing

Consolidated Replies:
• Floor crossing in East Timor

External Resources
• Existing Commitments for Democratic Elections in OSCE Participating States, OSCE, 2003

• OSCE/ODIHR and Venice Commission Joint Opinion on the Draft Laws on Presidential and Parliamentary Elections of the Kyrgyz Republic 

Names of contributors
1. Helena Catt
2. Charles Benjamin Nsimbi-Kabugujjo
3. Manuel Wally
4. Stina Larserud
5. Lawrence Lachmansingh
6. Parvinder Singh
7. Magnus Ohman
8. Ola Pettersson
9. Greg Power
10. Chris Rogers
11. Kunzang Wangdi
12. Atem Oben Henry Ekpeni
13. Koul Panha
14. Daniel Finn
15. Hadija Miiro
16. Steven Martin
17. Somsri Hananuntasuk
18. Matiar Rahman
19. Joao Almeida

In New Zealand from 2001-2005 the Election Integrity Act meant that an MP who had been elected from the party list had to resign from Parliament if they left their political party.  The original legislation specified that it lasted only until 2005.

The legislation was enacted in response to public outrage when an MP elected on the list left her party to be an independent but retained her seat and salary - she was perceived as unable to achieve anything as an independent. 

The legislation was unpopular with MPs and some who left their party managed to circumvent the rules and stay in Parliament.

Changing parties is still viewed negatively by the public.  Law makers recognise that it is very hard to write appropriate legislation that forces a party list MP to resign if they change party.

In Uganda MPs are elected either as sponsored by parties via primaries or as independent of any party (individual merit).  If an MP sponsored by a party wants to switch parties (i.e cross the floor) or become an independent, s/he automatically looses her/his seat and a by-election is arranged.  he is free to contest in the by-election sponsored by the new party or as an independent. 

This arose from the past ruling parties buying off the opposition MPs thus creating an almost single party parliamnet that would then rubber stamp what ever the government wanted.

Further to Charles' reply, here the wording of Uganda's constitution:

83. Tenure of office of members of Parliament.
(1) A member of Parliament shall vacate his or her seat in
Parliament—
(g) if that person leaves the political party for which he or she stood
as a candidate for election to Parliament to join another party or
to remain in Parliament as an independent member;
(h) if, having been elected to Parliament as an independent candidate,
that person joins a political party;

A 2011 constitutional lawsuit challenged the right of those 77 MPs to stand for reelection, who had not vacated their seats in violation article 83, and who had registered their candidacy under an affiliation different from that of the seat their were currently holding. The Court ordered them to immediately vacate their seats, but it upheld their right to stand for reelection under their new affiliation.

Yes. There are a lot of examples of different rules and quite a thorough discussion on this in the consolidated reply Floor-crossing in East Timor.

Guyana passed "recall" legislation a few years ago, which tightened the power of party leaders to counter defections.  Sorry I don't have access to the legislation - which may actually have been a constitutional amendment.  It therefore benefited from the support of more than 2/3 of the members.

In summary, the bill strengthened the hand of party leaders, who are responsible for identifying members from the party's list who sit in Parliament, to maintain the loyalty of those identified members.  Defections could be dealt with under the law by the loss of a seat and the naming of a new Member to fill the seat.  The Bill is expected to also deter (even further) the pursuit of independent thought or opinion.

In India also, the elected members to various houses on different party tickets cannot leave their party while holding their seats, unless the defection from the party is at least or more than 1/4 of its total bench strength in that house. Once elected on a party ticket, cannot convert into an independent candidate.

You've probably received sufficient replies here and in the Floor-crossing thread, which also provides some good arguments both in favor of and against forfeiture of seats. But if one really goes into the details it would be interesting to know whether the forfeiture of seats also applies when an independent joins a party. This is at least the case in Zambia (Constitution article 71c). 

As the previous reply suggested, you've probably got enough responses.  However, a couple of useful sources on floor-crossing legislation and the tension between the free representational mandate vs. the imperative mandate: http://www.partylaw.leidenuniv.nl/uploads/wp0209.pdf; http://www.kas.de/db_files/dokumente/7_dokument_dok_pdf_11847_2.pdf.

Members of Canada's Parliament may cross the floor without restriction on party affiliation.  When this has happened, some MPs have joined other parties, while others have chosen to sit as independents.

A Private Member's Bill on this issue was tabled during the current session of Parliament by an opposition party member.  Bill C-306 An Act to Amend the Parliament of Canada Act (political affiliation) is currently being debated in Parliament.

The bill states:

"This enactment provides that a member’s seat in the House of Commons will be vacated and a by-election called for that seat if the member, having been elected to the House as a member of a political party or as an independent, changes parties or becomes a member of a party, as the case may be. A member’s seat will not be vacated if the member, having been elected as a member of a political party, chooses to sit as an independent." (http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E&Mode=1&billId=5133402&View=10)

Over the past 15 years, several Private Members Bills have been introduced in Canada's Parliament to address the issue of floor-crossing.  However, none of these bills have been passed.

Further information on these bills can be found on the Parliament of Canada webite here:
http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E&Mode=1&billId=5133402&View=3

In Bhutan, the National Assembly is formed by two political parties. One the ruling and the other as an opposition. Any MP who resigns from a political party has to be out of the Parliament and cannot remain as  an Independent MP.

In Cameroon, once an MP crosses to another party he loses his or her seat and the seat remains vacant till the next election. The alternate can only take over in cases where the MP is appointed as a member of government or positions ranking as such.

In the past alternates kill substantive MP and take over. This was rampant and the law was amended and only in the event of a promotion can the alternate assume office as full MP.

In contrast to your situation, Cambodia has faced a lot of constraint and weakness in term of democratic governance in particular the accountability of individual of elected official and representative of constituency.   Because Cambodia uses the closed party list system and there is a provision of the election law empowers the political party which is able to replace its elected officials when she or he is death, resignation or loss of membership in the institution and their political party.  In Cambodia the political parties have been underdeveloped. The political parties lacked internal democratic structure. Thus leader of the party had so much power and strictly controlled its organization, decision and its member’s expressions.    They even arbitrarily dismissed its own members form the parliament membership without explanation.  

In  my opinion, the system needs to be debated in order to endure balance power of individual of the elected official and the political party within own party.  The system also ensures the effectiveness of democratic governance and better check and balance between political parties (the ruling and opposition parties).  Code of ethics and internal democratic structure, for the political party needs to be strengthened.     

OSCE/ODIHR, in its 2003 document "Existing Commitments for Democratic Elections in OSCE Participating States", describing applicable practices and standards in the OSCE area (including NL).  Under these standards, derived from the OSCE Copenhagen Document and its interpretation, the mandate is supposed to be owned by the individual candidate.  While some States permit the mandate to be withdrawn if an MP leaves the party, that should only be done through a formal judicial or other adjudicative process laid out under the relevant legislation - not merely by motion of the party in question or non-legislative rules of the parliamentary body.  Advise you consult the relevant portions of the 2003 OSCE/ODIHR document for further particulars.

Best,

Dr. Daniel Finn, Consultant/International Law & Public Affairs

Honiara, Solomon Islands

To supplement to what my two colleagues Benjamin and Wally , presented on Uganda, the ruling by the constitutional court of Uganda on Petition No 38 of 2010, on 1 February 2011 that;

“All members of Parliament, who crossed from their respective parties to other parties or chose to contest as independents without resigning from their previous parties, could not contest in the forthcoming elections”[1] was based on the following rationale:

 “You cannot, in a multiparty political system continue to represent the electorate on a party basis in Parliament while at the same time offering yourself for election for the next Parliament on the ticket of a different political party or as an independent. It would be a betrayal of the people who elected you and an exhibition of the highest form of political hypocrisy and opportunism the evil, we believe, article 83(1)(g) of the Constitution was designed to prevent. It is also an exhibition of political indiscipline and an abuse of people’s sovereignty which is so strongly enshrined in our Constitution”.

Article 83 (1)(g) of the Constitution of the Republic of Uganda, (Tenure of office of members of Parliament) stipulates that:

1.       A member of Parliament shall vacate his or her seat in Parliament If that person leaves the political party for which he or she stood as a candidate for election to Parliament to join another party or to remain in Parliament as an independent member;

2.       If, having been elected to Parliament as an independent candidate, that person joins a political party;

This article is interpreted to mean that:

(I)                 A Member of Parliament must vacate his/her seat if he/she was elected on a political party/organization ticket and then before the end of that Parliament the member joins another party.

(II)               He/she must vacate his/her seat if she was elected on a party ticket and elects to be  nominated as an Independent before the term of the Parliament comes to the end.

(III)             If he/she was elected to parliament on a party ticket, he/she cannot remain in Parliament as an independent member.[2]

This reply is posted on behalf of a former Election Commissioner of India.

India has an anti-defection law which places restrictions on elected members of a party basis defecting from their party midstream.

Broadly,if an elected member switches party he cannot continue to be member of the House unless one third of elected party members switch loyalty or the member is expelled from the Party. While the law is reasonably well crafted, decisions on defections have been left to the Speaker of the House who more often takes decisions on the party lines depending upon the party to which he owes his loyalty.

The Election Commission believes such decisions should be taken by the State Governor/President based on the recommendations of Election Commission.

Let me add two more relevant examples:

Kazakhstan:

In Kazakhstan, members of the lower-house of Parliament are directly elected through a proportional system with party lists. However, the Constitution stipulates that deputies lose their mandate if they leave or are excluded from their party, or if the party ceases its activity.

Kyrgyz Republic:

In the Kyrgyz Republic, the Election Law provides that a deputy loses his or her mandate upon the deputy’s exit from the fraction from which he/she was elected.

Both examples have been cited as conflicting with the 1990 OSCE Copenhagen Document. Paragraph 7.5 states: “[The participating States will] respect the right of citizens to seek political or public office, individually or as representatives of political parties or organizations, without discrimination”.  Paragraph 7.9 requires participating States to “ensure that candidates who obtain the necessary number of votes required by law are duly installed in office and are permitted to remain in office until their term expires or is otherwise brought to an end in a manner that is regulated by law in conformity with democratic parliamentary and constitutional procedures.”

More comments on the imperative mandate and party or faction control over deputies elected by popular vote can be found in Paragraph 49 and 50 of the OSCE/ODIHR and Venice Commission Joint Opinion on the Draft Laws on Presidential and Parliamentary Elections of the Kyrgyz Republic: http://www.osce.org/odihr/80842.

In Thailand, we have two systems, one is proportional list and constituency list.  All candidates must come from parties, no independent candidates.  If the elected MP want to change the party, he/she can do only when the party is banned or dissolved and they can move to another party within 30 days otherwise they can not do it.   People views such behavior as "selfish politician."

ANFREL

In Bangladesh it is in The Constitution Of The People Republic Of Bangladesh, article 70 stated regarding that, nominated by political party Elected Member of Parliament (MP) defected as independent MP, Honorable Speaker take the decision & send it to Election Commission for for election of that vacant seat.   

In Portugal, MP are elected through a proportional system with party lists (as party members or independent appointed by a party).

A MP that leaves his / her party looses the seat if he / she mooves to another party, but not if he / she stays as independent.