ONE big obstacle in introducing an anti-hopping law (AHL) is the ruling by the then Supreme Court in 1992, which interpreted the Federal Constitution and declared crossing over to another political party was a freedom of association.
Thus, in order to introduce the AHL, the first order of business is for the Parliament is to approve a constitutional amendment to bypass the 1992 court ruling and this requires a two-thirds majority vote to be passed.
But even this is not straightforward, as the amendment could be challenged in the Federal Court because any party concerned could seek legal remedy.
In 2015, retired Federal Court judge Datuk Seri Gopal Sri Ram, was reported to have said there could be no AHL in Malaysia because of the 1992 landmark judicial pronouncement.
“Even an amendment to the Federal Constitution will fail because freedoms under Part 2 of the national charter form part of the basic framework,” said Sri Ram.
He added that the Parliament cannot not enact laws, including amending the Federal Constitution, if it touches on the latter’s basic structure like freedom of association.
In the 1992 ruling, the bench interpreted the right to association included the freedom to disassociate, which is basically the “right to hop”.
However, we can understand on how “party-hopping” can negatively affect the nation. Political instability can be traced back to the freedom given to hop from one party to another.
Like our current scenario having three prime minister within two years since 2020, that has created both political and economic instability.
In September 2020, international ratings agency, Fitch Solutions, predicted that Malaysian politics is expected to blunt economic growth for the next decade.
Combined with slower population growth and reduced fiscal space to cushion against negative future economic shocks, Fitch also predicted Malaysia’s real gross domestic product (GDP) growth to be at just 3.4% over the next 10 years, compared to 6.4% over the past decade.
Already for last year, the first year of the new decade, GDP grew at 3.1% – lower than the 3.4% predicted by Fitch, which means politics still reared its ugly head.
If only the law was there in 2020…
One way to ensure the right to switch party is still there but would not necessarily result in political instability is to add a constitutional provision whereby the seat of an MP shall become vacant if the person ceases to be a member of, or is expelled or resigns from the political party for which the lawmaker stood in the election.
So, a by-election will be called for the seat where the former MP can contest under the ticket of his or her new party.
It is as if the former MP is asking for “endorsement” for his move to switch party from the electorate, which had earlier voted him, and it is really up to the voters to “endorse” him or not through their votes during a by-election.
As for an Independent MP, the same applies when his status as an Independent legislator changes when he joins any political parties.
This has to be added as a separate clause in the new provision to remove the ambiguity that it does not apply to Independent MPs simply because expressions like “ceases to be a member of, or is expelled or resigns from the political party” do not make sense to them, as they do not have a political party to begin with.
With this separate clause, it means Independent MPs too have to vacate their seats because switching party for them is a change in status from one who has no party to one with membership of a party.
Just to see how useful this provision is in mitigating political instability, let us assume that this provision was there during the Sheraton Move.
The Pakatan Harapan (Pakatan) government then would not have been brought down because it would not be easy for a new coalition Government to be formed with the support of more than 111 MPs.
The Perikatan Nasional (Perikatan) government was formed because of its ability to get the support of about 116 MPs. Out of this, 11 MPs had switched party from PKR to Bersatu.
Without this defection, Perikatan would not be able to get the support of 116 MPs, only 105 MPs, which was not enough to form a Government. This would mean the 11 PKR MPs would have to vacate their seat and 11 by-elections would have been called.
Meanwhile, the act of a political party to withdraw from a coalition should not be considered as party hopping.
Nazri’s novel and workable idea
To take the example of the Sheraton Move, when Bersatu pulled out from the Pakatan government, all Bersatu MPs were still members of the party before and after the withdrawal.
So at the point of pulling out, there was no party hopping then!
Another novel and creative idea to stem party switching is the proposal for a party-list based general election (GE) suggested by Padang Rengas MP, Datuk Seri Mohamed Nazri Abdul Aziz back in 2020.
Under this scheme, it is the party that is the “candidate” in a GE, not an individual member of the party as currently practised. At the ballot box, voters will tick the party symbol and logo for the party they want to represent them in a constituency.
The winner will still be based on the first-past-the post (FPTP) system in which the party with the most votes will win the seat. And the party winning the most number of seats will form the Government.
At the conclusion of the GE, the winning party of a constituency will then appoint a member of the party to be the MP of the constituency.
If midway through his term, the appointed MP jumps to another party, he cannot carry along his MP seat to his new party. This is because that seat does not belong to him but the winning party that has appointed him to be the MP.
Moreover, when a MP switches party, the seat does not have to be vacated to make way for a by-election. Instead, the winning party will appoint another member of the party as the new MP for the seat.
The beauty about this proposal is not only is the freedom to switch party is allowed but there would not be political instability because the winning party still holds to the seat. On top of this, taxpayers’ monies are substantially saved from holding a by-election.
Assuming if this proposal is in place during the Sheraton Move, then there is no need to organise the 11 by-elections for the 11 PKR MPs who switched allegiance to a new party under the earlier proposal of amending the tenure of the term of office of MPs.
One can just imagine the cost of organising 11 by-elections and the hefty savings gained from not organising them.
Even when a sitting MP dies or is incapacitated from performing his duty or loses his MP-ship due to a criminal conviction, there is no need to call for a by-election to replace him. The winning party will just appoint another member of the party to replace him as the new MP.
In this brilliant scheme, the issue of the mandate of the rakyat given during a GE being stolen after the election will become irrelevant because the mandate will be with the winning party throughout, until the next GE.
According to Nazri, a trained lawyer who was also a former de facto law minister, the amendment to the Election Commission Act 1957 to enforce a party-list system, in which voters would elect parties rather than individuals, only needed a simple majority to be approved.
This is unlike the two-thirds majority necessary for amendments to the Federal Constitution.
Speaking in Parliament on Nov 22 last year, Nazri, however, conceded that his proposal would not cover independent lawmakers, but said that was the risk voters must take in the unlikely event they opted to back one.
He further noted that independent lawmakers were not beholden to support any party even now. – April 5, 2022.
Jamari Mohtar is the Editor of Let’s Talk!, an e-newsletter on current affairs.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
