A Malay proverb states, "Galas habis senggulung tandas, laman dihitung rugi jua." (meaning: embarking on a futile effort) That is the portrayal of enacting an anti-hopping law. The push is futile since it fails to address the main issue: the collapse of governments.
Politicians opined that the anti-hopping law is the antidote for political and economic precariousness. It is supposed to avoid the fall of governments due to political cross-over amongst members of parliament (MPs) and state assemblymen. In reality, an anti-hopping law is not the solution.
"Party-Hopping" is a political phenomenon which only indicates the symptom, not the illness. If the proposed law is meant to address the symptom instead of the illness, then it is destined to fail. The real issue is the loss of majority support in legislative bodies (i.e. in Dewan Rakyat or state assemblies).
In Malaysia, there are two ways of legally establishing (and unseating) a government. First, via the election. Secondly, via the appointment of the prime minister under Article 43(2)(a) of the Federal Constitution without going to election. However, the first method depends on the second method i.e. commanding the majority support from members of Dewan Rakyat.
Article 43(2)(a) consists of two parts. First, Article 43(2)(a) provides that the Yang Di-Pertuan Agong (YDPA) shall appoint the PM from amongst the MPs in the Dewan Rakyat.
Second, it states that His Majesty shall appoint the PM who in his opinion commands the majority support amongst MPs. This part is the "thorn in the flesh". Without the majority support of MPs, the aspiring MP cannot be legally appointed as the PM. As a result, his political coalition cannot form the Cabinet.
Upon close examination, the second part in Article 43(2)(a) does not refer to any political party and/or political coalition. This leads to the inference that the majority support from MPs is an "individual" decision, not a "party-led" decision. Impliedly, by virtue of Article 43(2)(a) the Constitution allows political cross-over.
What the proponents failed to realise is that an anti-hopping law cannot prevent the loss of majority support in two scenarios i.e. political defection and non-political defection. Such phenomenon occurred in 2020 whereby the change of governments both in the federal and several states such as in Kedah, Melaka, Johor and Perak took place.
For instance, the appointment of the Pagoh MP as the 8th PM by the YDPA was a combination of these two scenarios. There were MPs who defected from their political party to support the Pagoh MP, such as the Gombak, Ampang and Indera Mahkota MPs.
At the same time, no UMNO MPs defected to make up the total majority support of the MPs toward Pagoh MP. Consequently, the YDPA appointed him as PM upon the fulfilment of Article 43(2)(a).
Non-political defections also occurred in the collapse of Perak government in 2020 under the leadership of the Chenderiang assemblyman. He was defeated during a motion of confidence in the Perak assembly. The defeat was a collective effort from the majority of assemblymen in Perak (inclusive of those from Umno and DAP) without a single assemblyman from DAP having defected.
And recently, the 8th PM had to resign after 14 Umno MPs withdrew their support. Did any of those Umno MPs defect? No. Did the federal government collapse? Yes.
These examples prove that governments can/will collapse, even without political cross-overs. Needless to say, any government in Malaysia can be toppled without the need of "party-hopping". If such is the case, what is the need to legislate an anti-hopping law? All that is needed are for MPs to withdraw their majority support.
Some would argue that the formation of governments via political cross-over is undemocratic since it circumvented the election. The answer is simple. There are situations which the stakeholders cannot afford to wait until the current mandate expires and elections take place (e.g. political crisis).
Covid-19 for instance, renders election as unsafe. As such, Article 43(2)(a) provides the solution without the need for the YDPA to dissolve the Parliament and hold elections. It is still democratic because it is allowed by the law.
Further, prior to passing an anti-hopping law, Article 43(2)(a) has to be amended with two-thirds majority in Parliament. In fact, other relevant articles such as 10(1)(c) on freedom of association and 48(1) on disqualification of membership of MPs will need to amended as well.
Amending Article 48(1) for example, will introduce a new clause that disqualifies politicians of their status as MPs for "party-hopping". If all or any of these Constitutional amendments are approved, politicians are affected as they will be rooted out from the centre of political power. Is this not contrary to the ends of politicking?
Admittedly, political cross-overs have gradually eroded the public confidence in democratic institutions such as election. However, what is the solution for politicians once their parties deviated from the political struggle? Is it plausible for these politicians to remain as 'political prisoners' in the party?
Is it justifiable to demand the vacancy of their respective seats once they crossed the floor? Such notion is against the decision of the then Supreme Court (now Federal Court) in Dewan Undangan Negeri Kelantan v. Nordin Salleh that underscored the freedom for association in Article 10(1)(c) entailed the right to defect and to form a new association.
Parliament's priority should be directed to legislate political funding law, instead of an anti-hopping law. While the latter is futility, the former will prevent the recurrence of infamous cases such as 1MDB. It will ensure the flow of money funding political activities is legitimate.
This will avoid politicians from being implicated in money laundering. In fact, the passing of political funding law will ensure cases relating to 'political donation' will be adjudicated transparently in Court. Party-hopping does not cause governments to collapse. Bribery does.
Political stability can only be achieved via political maturity. Politicians ought to think carefully on the implication of an anti-hopping law. Its success in other countries is not a guarantee that it is doable in Malaysia.
Let them not live to regret, as per the Malay proverb, "Takutkan tuma dibuangkan kain, takutkan hantu terpeluk bangkai." (meaning: for the fear of smaller misfortune, a bigger setback befalls instead).
The author is a Legal Practitioner and a post-graduate student at the Faculty of Law & Syariah, Universiti Sains Islam Malaysia (USIM)