GIVEN the rampant party-hopping at federal and state levels since the 14th general election in 2018, there have been numerous calls for the enactment of an anti-hopping law.
This would make it compulsory for a Member of Parliament (MP) or state assemblyman who "party-hops" or is expelled from his party to vacate his seat.
Meaning, the seat can no longer be "carried over" to the MP or state assemblyman's new party, and effectively imposes a penalty on the representative involved.
To date, no such bill has been tabled, though the Memorandum of Understanding between the government and Pakatan Harapan (PH) last year contains a pledge that an anti-hopping bill would be tabled and passed no later than the current sitting of Parliament.
Several challenges stand in the way of the enactment of such a law in Malaysia.
Firstly, imposing a penalty for party-hopping is a violation of the freedom of association guaranteed by the Federal Constitution.
For example, when the Kelantan state government attempted to enforce an anti-hopping provision in their state Constitution against two assemblymen who defected from their ruling party, the provision was declared unconstitutional by then Supreme Court, citing Article 10(1)(c) in the Federal Constitution.
This was on the basis that it infringes the fundamental right of citizens to form associations.
Under Article 10(2)(c), Parliament can theoretically enact an anti-hopping law by invoking its power to restrict the freedom of association.
But, there may be a lack of genuine political will to implement any anti-hopping laws because both sides of the political divide have benefited from such practices.
Furthermore, any representative who resigns from the Dewan Rakyat is constitutionally disqualified from seeking re-election for five years from the date of resignation.
Unless this disqualification provision is amended, it significantly raises the stakes for those caught by the provisions of an anti-hopping law, including legislators who disagree with their party leadership on a point of principle, and subsequently resign or are expelled from the party.
An anti-hopping law that kicks in when a legislator resigns or is expelled also fundamentally affects the historic role of an elected MP as a representative of the people in his or her constituency.
The MP becomes merely a team member who is legally required to follow team directions from party leadership, regardless of whether these offend his or her principles, or otherwise risk expulsion and the loss of his or her seat.
This could also weaken the connection between the voters and their elected representative, since the legislator would now be beholden to act as his or her party commands.
Furthermore, it is questionable whether such a law could effectively deal with the defection of an entire party from a coalition that contested together during the elections.
This was the case with Parti Pribumi Bersatu Malaysia, which sealed the downfall of the PH federal government in the "Sheraton Move" of 2020.
Thus, there is a real challenge in defining party-hopping for the purposes of the proposed anti-hopping law.
Anti-hopping laws are not new. A study in 2009 identified 41 countries with laws against defections.
Singapore has one of the most stable political systems in Asia, and its anti-hopping provision has been identified among its underpinning factors.
In South Africa, the anti-hopping law was aimed at ensuring political stability in what was expected to be a volatile transition from apartheid to non-apartheid politics.
An anti-hopping law in Malaysia could help stabilise the political scene, signifying public disapproval of party-hopping, which is generally inconsistent with political morality.
Nonetheless, it is important to note that anti-hopping laws will probably not be able to address the defection of an entire political party from a coalition, the main source of political instability in Malaysia in recent years.
Such a law is likely to only prevent individual legislators from abandoning their political party without consequences.
And, such a rule has negative consequences for the role of the legislature as a check and balance on governmental power, as legislators would not be able to dissent from their party leadership without risking the loss of their seats.
The drafting of the anti-hopping law is thus a balancing exercise between the imperatives of enhancing political stability and maintaining the ability of individual legislators to act in accordance with their conscience.
The writer is senior lecturer, Faculty of Business and Law, Taylor's University