Don’t rush into anti-hopping law and cause long-term damage to Constitution

THE Coalition for Clean and Fair Elections (Bersih) strongly opposes the proposed amendment to Article 10, which touches on our fundamental liberty to freedom of association, that is to be tabled at Parliament tomorrow (April 11).

While it is undeniable that there is a need to legislate against rampant party-hopping, we cannot enact bad laws that have the potential to undermine fundamental liberties and dismantle Constitutional protection of healthy inter-party competition and necessary checks and balances in a democracy. And while anti-hopping laws should be enacted before the next general election, they should not be enacted in a rush simply to satisfy political bargains made between today's political parties. The consequences of their self-interests today will reverberate for generations to come.

Bersih proposes that the MOU (memorandum of understanding) committee and the Cabinet settle for a limited version of an anti-hopping law (AHL) which excludes expulsion from party from being defined as party-hopping, as such satisfies the objection of some parties or MPs.

Our position is as below:

> The proposed amendment to Article 10 (3A), “Notwithstanding paragraph (c) of Clause (2) and Clause (3), restrictions on the right to form association conferred by paragraph (c) of Clause (1) relating to membership in a party of members of the House of Representatives and members of the State Legislative Assembly may also be imposed by federal law”. This has been strongly criticised by legal experts and other members of civil society as well as MPs, and should be reworded as: Notwithstanding Clause (2), restrictions on the right to form association, conferred by paragraph (c) of Clause (1), of members of the House of Representatives relating to change of their political party affiliation after election, may be imposed by this Constitution.

> In the next Parliamentary special meeting, a new Article 49A should be passed with a definition of party-hopping that excludes expulsion, and such that it includes the following: “Subject to the provisions of this Article, a member of the House of Representatives shall vacate his seat if – (a) having been elected as a candidate of a political party, he resigns or ceases for any reason whatsoever except expulsion, to be a member of that party during the relevant term of his election; or (b) having been elected otherwise than as a candidate of a political party, he joins a political party during the relevant term of his election.”

No Parliamentary act that would only complicate the matter is needed.

> The proposed addition of Article 10(3A) and Article 49A is sufficient to by-pass, where a federal AHL is concerned, the Supreme Court’s 1992 verdict on Nordin Salleh which ruled out only state-level AHLs on the ground of restricting freedom of association in Article 10.

By excluding expulsion from party from the definition of party-hopping, it would indeed weaken the power of the AHL, as MPs who have effectively defected by acting against their parties would not resign but wait to be sacked in order to keep their seats in the House or state assemblies. While this is not ideal, this compromise is inevitable when society and the political leadership want a traditional form of AHL but cannot agree on its coverage.

Pursuing the existing path, marked by disputes and delays, not just about Article 10 but also the separate Parliamentary act in the next step, we may never see a legal mechanism to deal with the menace of party-hopping before GE15. Such a scenario is wholly unacceptable to the public who has been disappointed and betrayed by the spectacle of collapsing governments brought about by party-hopping in the past two years.

Settling for this limited form of AHL can satisfy the public’s demand to see some restrictions on party-hopping before GE15 without causing long-term harm to Constitutional rights. When the weaknesses of this AHL emerge, Parliament can seek other remedies such as recall.

For this reason, Parliament must not impose any one-size-fits-all solution on the states by amending the Eighth Schedule. Instead, states committed to political stability and accountability should take the initiative and be empowered to explore and enact their own anti-hopping instruments, as states in Malaysia (1960s-1990s), India and Canada did even before any federal initiative.

To avoid blind spots in drafting, we urge the government and the MOU Steering Committee to promise transparency in the process, that drafts and engagements are made public with reasonable time given for public discussion and feedback. Let this be a new normal in law formulation, where members of the public are informed and can express their preference for lawmakers to consider and represent.

BERSIH STEERING COMMITTEE