Anti-hopping law – a more effective deterrent to political defections

POLITICAL crossovers, or more commonly called party-hopping, has brought instability to this country. The problem, already chronic, intensified after the 14th general election.

Before the collapse of the Pakatan Harapan government, party-hopping mostly benefited the ruling pact, especially its component Bersatu. This was followed suit by Perikatan Nasional. Besides Putrajaya, four states – Johor, Malacca, Perak and Kedah – were the casualties of defections. Recently, two Sabah assemblymen switched allegiance to PN, and rumours of further party-hopping continue to appear in the headlines.

PH and its allies under the Pakatan Plus banner, meanwhile, are plotting “anti-coup” defections in order to restore and resume the pact’s federal rule. Many wonder, what does all of this mean for an electoral democracy?

Political analyst Wong Chin Huat has put forward that under the current conditions, even if Pakatan Plus manages to stage an anti-coup, the new government is not likely to be more stable than the PN administration. When the government has only a slim majority in the Dewan Rakyat, both sides of the aisle are equally thirsty for power and enticed to operate through the back door to wrest or keep it.

Our federal constitution and political system allow this practice, under the defence of freedom of association. Dewan Undangan Negeri Kelantan v Nordin Salleh (1992) 1 MLJ 697, where Nordin Salleh and Wan Najib Wan Mohamad challenged Kelantan’s anti-hopping law as unconstitutional after losing their seats following their defection, and subsequently, getting defeated in by-elections, set a precedent. The duo ended up winning the case.

There are three common scenarios when it comes to political crossovers: 1) Leaving Party A for Party B; 2) A lawmaker leaving the party on whose ticket they contested to become an independent; and, 3) Elected as an independent, but joining a party later. Some make 2) their first move before undertaking 1) for fear of constituents’ backlash.

Those who exit a party may have decided to do so in protest against their party’s stance or their sacking. Article 10, Clause 1(c) of the constitution guarantees citizens the freedom of association. When a party member, regardless of their position, wants to leave and join or form another outfit, it is their right to do just that, no matter how reasonable or unreasonable their decision (though they must still return assets belonging to the original party). No one disputes this.

However, when one wins public office after running on a particular party’s ticket, can they retain the seat should they quit the party? During the election campaign, the party would have committed an abundance of resources and offered its “brand”. So, the question is, to what extent does a candidate win on their own merits? Surely, party-hopping is justified only when they seek a fresh mandate from the people, thus ensuring legitimate representation – if they are serious about electoral democracy.

According to the verdict on the 1992 case, Article XXX1A of Kelantan’s law restricts a legislator’s basic right to associate, which automatically includes the right to disassociate. The judge deemed the state law’s disqualification of the membership of a legislator who has quit their party as an act that imposes a “penalty” on the right to associate guaranteed under the federal constitution, which is the highest law of the land as stipulated in Article 4(1). Therefore, the court ruled Article XXX1A unconstitutional and void. In addition, political crossovers are not listed among the seven grounds for an assemblyman’s disqualification as provided for in the Eighth Schedule, Part 1, Clause 6(1).

I argue that these are constitutional hurdles for any form of anti-hopping law at the moment, and not grounds for rejection. The 1992 verdict left an opening: if the government feels that an anti-hopping law is worth pursuing, it must be done at the Parliament level, and involve amendments to Articles 10(2c) and 48(1), as well as Article 48(6), which gives the affected person the right to stand again in a by-election. But for the foreseeable future, it is unlikely that any coalition can get the two-thirds majority required to pass constitutional amendments. And, such bills will probably not gain traction because both sides do not wish to easily give up the backdoor trump card for political rent-seeking opportunities in the future.

Figure 1: Results of the 1990 general election and 1991 by-elections for the Kelantan state seats of Sg Pinang and Limbongan. Source: Ab Rahman Ismail (1999).

In fact, the results of the 1991 by-elections triggered by Kelantan’s anti-hopping law (see Figure 1) vindicated the necessity of having such a law. Defectors are generally assumed to have a deficit of democratic support, mainly because Malaysians tend to vote tactically. To call it an anti-hopping law is actually a misnomer as it would not stop anyone from changing their party affiliation, only determining that they cannot keep their seat without first letting voters have a fair chance at deciding once more who should represent them. This should be part of an electoral democracy. I disagree that this law is meant to “penalise” defectors, as it merely upholds legitimate representation in the spirit of democracy.

Figure 2: Taiwanese recall polls, and Malaysian by-elections triggered by Kelantan’s anti-hopping law and a resignation.

Following the successful recall of Taiwan’s Kaohsiung mayor, Han Kuo-yu, on June 6, many are inclined to use such polls to deal with political “frogs”. Although it is a praiseworthy mechanism that allows the electorate to recall their representative on various grounds, it is more time- and resource-consuming in terms of addressing the defection issue (see Figure 2). Besides having more procedures in place, the Election Commission may need to spend at least double to hold recall polls followed by a by-election. Parties and voters may need to commit resources to the petition campaign as well.

Recall polls do not stop defectors from realising their plan to first have a backdoor government, however. It is possible that some are already sworn in as ministers when no vote has yet been cast in recall polls. With the backing of a new government, who has the advantage in the elections later?

An anti-hopping law, on the other hand, would have an immediate effect. It might not stop the whole of Bersatu from switching allegiance, but at least 10 PKR defectors would have to vacate their seats first. Thus, no PN government could be formed until most of the defectors win by-elections. This is surely a more effective deterrent to a sudden change of government due to an individual’s personal greed.

Bersih 2.0 has presented two main arguments against the proposed anti-hopping law: 1) Elected representatives would become party leaders’ puppets for fear of being sacked; and, 2) Government backbenchers would be cheerleaders for the administration, not daring to challenge their frontbencher colleagues, nor would they vote according to their conscience or for public interest (so as to toe the party line). The electoral watchdog made a few assumptions here.

Sacking an elected representative is actually a risk to the party, as it may be unable to keep the seat in a by-election. It also allows the public to decide if the party had been wrong about the rep it booted out. Bersih seems to insinuate that most, if not all, lawmakers dare not speak up for the people as they are afraid of losing their seats. Perhaps, it should be reminded of what Shahrir Abdul Samad did in 1988. He resigned in protest against then prime minister Dr Mahathir Mohamad’s mishandling of the judiciary crisis, stood as an independent in a by-election, and won with a higher majority. Who dares say Dr Boo Cheng Hau and Teh Yee Cheu are/were puppets to their party leaders?

Even snap elections would not resolve the current impasse as no coalition would be able to emerge victorious with a majority solid enough to prevent another cycle of party-hopping. Whether recall polls or an anti-hopping law, mechanisms must be installed to ensure the nation’s political stability. One should not rule out the said law just yet. 

Lim Chee Han

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