The Malaysian Insight

IF there is a silver lining in all the political turmoil that has seen a change of three prime ministers and governments in three years, it is that more lawmakers are now in favour of anti-party hopping laws.

The main reason for this is the record number of lawmakers that have jumped parties since the 2018 elections. 

Bersatu, for instance, received 24 defections from Umno and PKR in the past two years. The party now has 31 parliamentary seats despite winning only 13 seats in 2018 and losing six MPs last year.

Support for such a law is now coming from both sides of the political divide, but it remains to be seen whether it will be in the form of an anti-hopping law or a recall mechanism. 

What is the difference between the two options, and what are their pros and cons?

Anti-hopping laws: an outright ban

Former election reform committee member Dr Wong Chin Huat said that anti-hopping laws are generally straightforward and would take the form of a constitutional clause rather than a parliamentary act.

“It basically says that the seat will be automatically vacated once a lawmaker leaves or is expelled from their parties, and this triggers a by-election vis-à-vis (as compared to) other clauses,” said Wong. 

However, Article 54(1) of the federal constitution states that vacancies that take place with fewer than two years left till the next elections shall be left vacant unless the ruling government is affected by the said vacancy. 

According to Wong, there are two problems with an anti-hopping clause.

“First, it would not be able to cover coalition-hopping like Bersatu’s pull-out from Pakatan Harapan (PH), or the East Malaysian parties’ pull-out (from) Barisan Nasional after 2018. 

“As such, hopping lawmakers can be punished only if they jump individually but not when the entire party jumps.

“Secondly, this may be easily abused by party leaders who sack dissidents or rivals in the party to cause them to lose their seats. This will make party leaders extremely powerful, and if a government has a solid majority, government backbenchers would become the executive’s cheerleaders, reproducing a rubber stamp Parliament,” said the former Bersih 2.0 committee member.

For it to be effective, the anti-hopping law must also be able to address the issue of lawmakers who switch allegiances, despite not leaving the party. 

“Otherwise, they will just stay in the party to sabotage the party or wait to be sacked to bypass the anti-hopping law,” said Wong. 

Recall elections – let voters decide

On the other hand, recall elections, which were proposed by Umno’s Najib Razak as well as former deputy speaker Azalina Othman Said, can solve both problems by allowing voters to decide whether to call a by-election through a petition system, according to the electoral expert.

“After a lawmaker leaves his party, registered voters in the said constituency will be given the chance to propose a recall election. And if there are enough voters (40%) who support this petition, a by-election is then called,” Wong said.

He added that the petition system under the recall mechanism can address a situation where a lawmaker resigns from their parties for reasons based on principle.

“First, if the voters want to punish lawmaker of a party who leaves its coalition, they can force those seats to be vacated. 

“Second, if a lawmaker leaves or gets expelled from the party with the support of his/her constituents, then he or she gets to keep the seat because no recall attempt would be attempted or succeed,” he said. 

Wong said a recall mechanism is more versatile than an anti-hopping law, as voters are the ones who “sack” lawmakers on grounds other than defection or coalition-hopping.

“Unlike an anti-hopping clause, the vacancy is not automatic,” he added.

Wong said that the requirement that 40% of voters must support a petition to recall before a by-election can be held is based on a similar system in the Canadian province of British Columbia.

Time to stop party-hopping

For PKR vice president Chang Lih Kang, the suggestion for recall elections is fairer, as not all defections involve greed or personal interests.

“Some MPs might quit their parties based on principles. Therefore, these MPs should be given a chance to test their support with their constituents before going for a by-election,” said the Tg Malim MP. 

“If there’s an outright ban on anti-hopping, a principled MP has no chance to even test his popularity among voters,” said Chang.

Umno’s Cameron Highlands lawmaker Ramli Md Nor said that while it’s time to legislate against party-hopping, it will only be possible with an amendment of Article 10 of the constitution (provision on freedom of association).

“As it is, anti-hopping laws cannot work because of Article 10, which provides for freedom of association. Failing which, it can be challenged again,” said the former police officer.

In the now infamous 1992 case of Kelantan State Assembly v Nordin Salleh, the apex court ruled that the anti-hopping law passed by the Kelantan state assembly contradicted Article 10(1)(c) of the constitution, which guarantees the freedom of association.

The court found that the freedom of association includes a right to dissociate, and that it is unconstitutional for the state to impose a sanction against such rights.

Article 10(2) of the federal constitution, however, does allow Parliament to enact laws that restrict such fundamental rights in order to maintain public order and security. 

Other lawmakers who have voiced their support for recall elections are senior Umno MPs – Najib Razak (Pekan), Ahmad Maslan (Pontian), and Azalina (Pengerang).

Segambut MP Hannah Yeoh said that while the recall mechanism may seem fairer, it must be designed in a way that prevents it from being abused.

“While a direct anti-hopping law will stop lawmakers from jumping at will as they have to face voters again, it may also discourage those who wish to leave their parties because of internal conflicts or disagreement over policies.

“On the other hand, while recall elections seem fairer, it must include specific conditions to prevent parties from abusing it to trigger by-elections by sacking their own lawmakers. Otherwise, we will be facing by-election after by-election,” said Yeoh.

Kalabakan MP Ma’mun Bin Sulaiman from Parti Warisan Sabah said that while both options have their advantages and disadvantages, either one will be able to stabilise the country’s political scene.

Weighing the pros and cons of both choices, he said an anti-hopping clause in the constitution would require a two-third support from MPs in the Dewan Rakyat, whereas in the case of the recall mechanism, the costs associated with holding a by-election must be examined. 

“Most importantly, it will increase public trust in politicians.

“One thing is certain, elected representatives will not make a hasty choice to switch parties, and efforts to lure elected members will be halted,” Ma’mun said.

A law to stop political defections is being discussed by newly appointed Prime Minister Ismail Sabri Yaakob and PH as one of reforms of the new administration. 

It is part of a confidence and supply agreement whereby the opposition would support the government in exchange for various reforms, including parliamentary reform and proper consultation with the opposition before the tabling of bills in Parliament. – September 6, 2021.