IN law, as in life, there are no ideal solutions, says constitutional law expert Professor Datuk Dr Shad Saleem Faruqi.
We witnessed the truth of this statement when the amendments to the Federal Constitution were tabled in the Dewan Rakyat on Monday as a prelude to an anti-party hopping law.
To borrow an idea from Shad, all man-made laws will have a mixed bag of social consequences. His point is this: much as we may support the anti-defection law initiative, it must be borne in mind that it may not necessarily achieve stable, competitive politics.
Shad offers an illustration. If after a general election, there is a hung Parliament and a political stalemate, it will not be possible to form a government if an opposition party or bloc is forbidden from crossing the aisle. "This means that the anti-defection law should not apply to the formation of post-election coalitions.
It should not apply to political parties or independents making new alignments in the interim period (say, three weeks) after an election and the formation of the new government by the Yang di-Pertuan Agong under Article 43 of the Federal Constitution." This doesn't mean party-hopping can't be prevented or punished. Shad offers a few ways of doing this.
The first step is to get rid of the hurdle posed by Article 10(1)(c) of the Federal Constitution, which grants all citizens a right to freedom of association.
Consider the 1992 Supreme Court decision in the case of Dewan Undangan v. Nordin Salleh. There, the Kelantan state government had introduced an anti-defection law and when Nordin crossed the aisle to join Umno, his seat was declared vacant under the law.
The court held that the fundamental right in Article 10 can only be restricted by Parliament and that the constitutional right to associate includes the right to disassociate and reassociate.
To this day, party hopping is legal. As to whether it is politically moral, it's a question the court could have considered as provided for in Article 10(2)(c), but didn't.
There are ways to "neutralise" the Nordin decision, says Shad. One way is to amend Article 10(2) to make the anti-defection law applicable to state assemblies as well.
Secondly, Article 10(2)(c) should be amended to include political morality to avoid future courts restricting "morality" to sexual morality.
Finally, an amendment and a repeal for Article 48, which deals with disqualification for membership of Parliament.
As for the amendment, Shad suggests the insertion of a new clause (g) to read thus: "that having been a candidate of a political party or coalition and elected to the House of Representatives as a candidate of that political party or coalition, he resigns from that political party or coalition or crosses the floor."
As for the repeal of Article 48(6), Shad would like to see the five-year disqualification placed on members who resigned their seat removed to enable them to recontest a by-election.
To him, the repeal will achieve a happy balance between the freedom to associate and the mandate of the people. All said, we may be putting too much hope on laws to clean up politics. As Shad tells us, laws are as good as those who administer them. Politicians may want to take note.