Defects in the anti-defection law

The anti-hopping legislation can be criticised for a number of weaknesses and needs further amendment

PARTY-HOPPING by elected MPs or members of state assemblies is largely motivated by selfish or corrupt motives and is rightly condemned by society.At the federal level, the spectacular “Sheraton Move” caused the downfall of the Pakatan Harapan government led by Tun Dr Mahathir Mohamad in 2020 after only 22 months in power.

A former law minister informs us that since 2018, as many as 45 MPs have switched political loyalties. Going back in time, some legislators have changed camps as many as five times!

At the state level, defections brought down elected governments in Terengganu (1962), Sarawak (1966), Kelantan (1977), Sabah (1994, 2018, 2020), Perak (2009, 2020), Kedah (2020), Melaka (2021) and Johor (2022).

For 65 years, we had no anti-hopping law; this was rectified by the Constitution (Amendment) (No. 3) Act 2022.

The amendment explicitly provides the permitted as well as the prohibited grounds on which a casual vacancy may arise.

The list of these grounds is quite long. Only two grounds will be commented on.

First, “ceasing to be a member of a political party” triggers the anti-defection law for the Speaker to “establish” that a casual vacancy has arisen. Second, “expulsion” from a party is explicitly mentioned as a ground on which a seat does not fall vacant.

The fatal defect in the law is that no clear distinction is provided by Article 49A between “ceasing to be a member” and being expelled or dismissed or sacked from the party.

The matter is, therefore, one of interpretation – and interpretation by whom? By the aggrieved political party itself, the Registrar of Societies, the Speaker of the Dewan Rakyat, the Election Commission, or the courts?

I am guided by Article 49A(3) that the Speaker “shall establish” that a casual vacancy exists.

The Speaker’s role is not a mechanical, rubber stamp role. He is bound by the supreme Constitution’s Article 49A as well as other provisions.

I agree with my learned colleague at Universiti Malaya, Dr Sheila Lingam, that “cease to be a member” appears to ascribe a certain amount of culpability on the part of the MP by his own actions or inactions, such as not paying the prescribed membership fees, or resigning from the party, or joining another party.

To these, I could add the Article 48 grounds of an MP’s disqualification, like acquiring citizenship of another country, or being declared of unsound mind, or becoming an undischarged bankrupt, or convicted of a crime.

“Expelled”, on the other hand, connotes that it was the political party’s decision to conduct an inquiry, issue a show-cause notice, and oust the member from its party roll due to some misconduct.

Seen in this light, it appears that Bersatu’s action in revoking the membership of its six members amounts to an “expulsion” – a sort of constructive dismissal.

It does not matter if Bersatu uses the words “ceases to be a member” in its notice to terminate membership. What is important is not the form but the substance.

In the 1979 case of Teh Cheng Poh, on another matter, the Privy Council held that in constitutional law, we do not look to form but to substance. It’s not what a rule says, it’s what it does; it is not the content but the relevant consequences.

It is submitted that the power to interpret Article 49A of the Federal Constitution does not lie with the party leadership or the party’s constitution. The party’s constitution must conform to the Federal Constitution’s new Article 49A. The party constitution must draw a clear and rational distinction between ceasing to be a member and being dismissed as a member.

If there is no such distinction, the Speaker is entitled to interpret the law in the light of Article 49A.

In addition, judicial review may lie if the party constitution simply plays with words and calls a dismissal a cessation of membership.

The Registrar of Societies approved the party constitution.

The Societies Act, in Section 18C, has an ouster clause that gives the Registrar’s decision finality.

Ouster clauses are not binding on the courts if there is unconstitutionality.

The constitutional dimension of the “Bersatu six” case deserves close examination.

Also, the anti-hopping amendment needs further amendment. It can be criticised for a number of weaknesses.

First, individual MPs are forbidden to hop, but entire parties or coalitions may defect from one party or coalition to another. So, another Sheraton-type Move is again possible!

Second, the Constitution’s failure to distinguish between expulsion on the one hand and ceasing to be a member on the other causes some uncertainty and permits some flexibility to MPs to be wedded to one party but to bed with another without resigning from their original party.

Hopefully, these loopholes can be plugged.

The author is Tunku Abdul Rahman Professor at Universiti Malaya. The views expressed here are entirely the author’s own.