It is time for an anti-hopping Act

A PARLIAMENTARY vote on the constitutional amendment to regulate or ban party-hopping has been deferred pending a special committee deliberation. Hopefully, this deliberation will proceed even during the prorogation of Parliament.

The political instability that has engulfed the nation since 2020 has traumatised the public. There is scepticism about the relevance of the electoral process and of the belief that an MP represents his constituents. Most of us suspect that party-hopping is fuelled by money politics or selfish calculations of personal or political gain.

Where ethics fails to deter, the law must step in. Fortunately, a number of proposals are on the table and deserve careful analysis of their pros and cons.

Constitutional amendment Article 10(1)(c) grants all citizens a right to freedom of association but subjects the right to a parliamentary law on grounds of security, public order or morality.

In 1992, in the case of Dewan Undangan Negeri Kelantan vs Nordin Salleh, an anti-defection provision of the Kelantan Constitution was challenged as a violation of the Federal Constitution.

The Supreme Court held that the fundamental right in Article 10 can be restricted only by the Federal Parliament and not the State Assembly. It also held that the constitutional right to associate includes the right to disassociate. As such, party-hopping is part of freedom of association. To the Kelantan government’s submission that freedom of association is not absolute but subjected by Article 10(2) to “morality”, the apex court made a bizarre ruling that the term “morality” should be confined to sex morality!

Despite its negative consequences, the Nordin Salleh decision is binding on us. We need to neutralise it. For this and some broader purposes, a few constitutional amendments are humbly proposed:

1. Amend Article 10(2) to allow the States autonomy to fashion their own anti-hopping laws. Insert after the word “Parliament”, the words “and, for the purpose of an anti-defection law, the State Assemblies”.

2. Amend Article 10(2)(c) to redefine the term morality. Insert after the word “morality”, the words “including political morality” to nullify the Nordin Salleh definition.

3. Amend Article 48(1), which deals with disqualification for membership of Parliament. Insert after clause (f) a new clause (g) “that having been a candidate of a political party or coalition and elected to the House of Representatives as a candidate of that political party or coalition, he resigns from that political party or coalition or crosses the floor”. This proposal is inspired by similar clauses in Belize, Nigeria and Seychelles.

4. Amend Article 48(6) to remove the five-year disqualification from members who resign from their seat. Party hoppers should be required to resign but allowed to recontest at a by-election to seek renewal of their mandate. This will achieve a balance between freedom to associate and the need to honour the trust and mandate of the people.

5. On the Indian model, amend Article 43 to restrict the number of ministerial and deputy ministerial posts to no more than 15% of the Dewan Rakyat membership.

6. Amend Article 43 to ban a defecting MP from holding a Cabinet post or any remunerative posts in government during the parliamentary term.

Government’s draft: It is not clear why the government’s Constitution (Amendment) Bill (No 3) 2022 is going after the membership of political parties rather than the membership of Parliament or State Assemblies by the political hoppers. Clause 2(b) is too broad. The issue before us is political hoppers who, after a general election, abandon the party that nominated them, supported them and gave them a winning manifesto. Parliament should deliberate on how to prevent them from committing the constitutional sin of hopping and not on how to control or regulate the membership of political parties.

Proposed anti-defection laws: Forty-one or so nations out of 193 (or 21.2%) have anti-defection laws, among them India, Singapore and Israel. In Malaysia, the states of Sabah, Kelantan and Penang attempted unsuccessfully to have such laws. Their power should be restored.

The following are the main proposals in existing literature:

> The seat of an MP should become vacant if he ceases to be a member of, or is expelled or resigns from the political party for which he stood in the election. The great objection to this proposal is that it defines defection too broadly. It makes any defiance of the party a disqualification for membership of Parliament. It makes an MP the rubber stamp of the party leadership. It makes the party leader too powerful and enables him to curb all dissent and competition.

> In India, a defecting MP loses his seat but is allowed to recontest. However, there is an additional condition that he is not allowed to hold a Cabinet post or remunerative position with the government for his term. This is meant to reduce incidents of corruption.

> The interesting Recall Proposal suggests that voters in the hopper’s constituency may send a recall petition to the Election Commission.

There is a difference of opinion on what percentage of voters can trigger the recall. If the petition meets the threshold, a by-election is held. At the by-election, a certain percentage of voters must show up to elect the new candidate. Recall provisions will empower constituents and enhance the constituency function. But because it is a multi-stage process, it may exhaust the public.

> Then there is a “runner-up proposal”, which suggests that in the case of defection, the defector’s seat is vacated and awarded to the runner-up in the constituency.

> Finally, the statutory declaration proposal relies on the widespread but questionable tradition that any candidate who is nominated to contest an election in the name of a party must sign an undated resignation letter at the time of nomination. Courts have condemned this practice as not binding (Datuk Ong Kee Hui vs Sinyium anak Mutit (1982).

In sum, it can be asserted that in the circumstances prevailing our political system, we definitely need an anti-hopping law. In the weeks ahead, there should be widespread committee discussions to draft the best possible or least objectionable constitutional amendment, and an anti-defection law from many models available around the world.

The law should seek to achieve a balance between the right to associate and the need to restore some morality to our political processes.

But it must be borne in mind that in law as is in life, there are no ideal solutions. All laws lead to a mixed bag of social consequences. For example, if there is a hung Parliament and a political stalemate after a general election, it will not be possible to form a government if an Opposition party or bloc is forbidden from crossing the aisle.

This means that the anti-defection law should not apply to the formation of post-election coalitions. It should not apply to political parties making new alignments in the interim period (say, three weeks) after an election and the appointment by the Yang di-Pertuan Agong of a new prime minister under Article 43. This proposal in turn will raise the justifiable objection that anti-defection law locks down MPs but not parties!

It must also be remembered that laws and institutions are as good as the people who administer them. Without better control on political corruption, political financing, a constitutional limit on the number of Cabinet posts and the shutting off of the material incentives that accompany hopping, an anti-defection law by itself cannot clean up our politics. Nevertheless, the experiment is worth a try.

Emeritus Professor Dr Shad Saleem Faruqi is holder of the Tunku Abdul Rahman Chair at the Faculty of Law, Universiti Malaya. The views expressed here are the writer’s own.