Paving the way for anti-hopping law

THE defection of elected members of the legislative assembly undermines democratic governance. The electorate who exercised their vote becomes disaffected.

Wrongful pressure may then be placed upon the constitutional head to ascertain as to who commands the confidence of the majority in the legislative assembly.

This draws the constitutional head into the political thicket, impairing their role as an impartial umpire overseeing a transition of executive power. The process of evaluating the elected member’s defection by way of statutory declarations and/or interviews gives rise to unease.

When the results of a concluded election, which ought to lead to public stability over the next five years, are brought into question, the consequences are deleterious for proper governance.

It is therefore imperative that an anti-defection law be introduced.

As a result of a 1992 decision (Dewan undangan negeri Kelantan & Anor v Nordin Bin Salleh & Anor, in which the Supreme Court found that a provision of the state of Kelantan’s Constitution was in contradiction with Article 10(1)(c) of the Federal Constitution that guarantees freedom of association), a constitutional amendment has to be introduced to rectify the precedent that anti-defection laws contravene Article 10 of the Federal Constitution.

Any constitutional amendment ought to have the following characteristics and elements:

i) Be simple and concise;

ii) Deal with the construction of Article 10 without extended reference to political party complexities; and

iii) Confines itself to the Dewan Rakyat and NOT the Dewan Negara, as the source of disaffection is the defection of MPs.

A single new constitutional provision should be passed: “The seat of a Member of Parliament shall become vacant when he ceases to be a member of, or resigns or is expelled from the political party for which that member contested in the election.”

The Singapore Constitution contains a similar provision (Article 46(2) (b)).

The simplicity and conciseness will obviate delay in the passage of an anti-defection law. After the passage of the amendment in Parliament, state assemblies may also convene to pass a similar law in their respective constitutions.

The courts will be under duty to give weight and meaning to this constitutional amendment. The baneful impact of the extended meaning given to freedom of association to strike down anti-defections laws will then be rectified.

PHILIP KOH TONG NGEE

Adjunct professor, Universiti Malaya

Advocate & solicitor, High Court of Malaya