The Malaysian Insight

ANTI-HOPPING mechanisms must not be too complicated for it to be practical, Mohamad Ariff Md Yusof said in a forum today.

“It must be simple as voters in urban areas such as Damansara are very different from the ones in Julau. And it will not be easy to reach the thresholds that are being suggested,” the former Dewan Rakyat speaker told a Bar Council forum today.

The former Court of Appeal judge also warned proponents of anti-hopping laws not to put all their eggs in the “legal basket” by bypassing constitutional amendments.

The 72-year-old said that he had reviewed the Kelantan state assembly v Nordin Salleh Federal Court decision and could not find a way to depart from the decision.

“If the government is keen on reform, it should amend Articles 10 (1) and 10 (2)(c) of the Federal Constitution of Malaysia.”

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 said 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. 

Ariff was speaking at the Bar Council’s “Anti-Hopping Laws or Recall Elections” webinar this morning together with Pengerang MP Azalina Othman Said and political scientist Prof Wong Chin Huat.

While all the panelists agreed that some kind of anti-hopping mechanism is needed to stop the rampant party hopping, there were some differences of opinions on how it should be implemented.

Some believe that constitutional amendments are needed to avoid the Nordin Salleh precedent while others believe that a recall election mechanism would avoid constitutional amendments that require two-thirds of Dewan Rakyat approval.

Azalina, who has proposed a Private Member’s Bill to Dewan Rakyat, is in favour of an anti-hopping law that includes recall election mechanisms while Wong is in favour of recall election mechanisms. 

“Article 10 (2) (c), for example, can be simply amended by inserting a provision relating to restrictions to protect the privileges of Parliament or to provide for disqualifications of MPs by any law relating to party defections,” said Ariff.

He said that Article 48 (disqualification of MPs) could also include an express disqualifying provision that states an MP would lose his seat if he resigns or is expelled from his party. 

“Another item that can be included is political parties switching coalitions,” said the retired judge.

The case for recall

Recall elections proponent Wong believes that anti-hopping laws (AHL) alone do not cover coalition hopping as what Bersatu did last year. 

Wong said AHL also stifled MP independence and stopped parties from evolving. 

“Recall mechanisms, on the other hand, will cover coalition hopping, allow MPs to defy party whips in Parliament, and let parties evolve based on circumstances. The only disadvantage is that it would take longer,” said the former Bersih 2.0 committee member.

In his presentation, Wong showed several examples of recall election mechanisms.

Among the mechanisms Wong proposed is a three-stage process that involves having 1% of voters agreeing to a recall petition, followed by getting 40% of voters to agree on the petition before a by-election can be called.

The model, which is fashioned after British Columbia’s recall election mechanism, would take some 120-140 days before a by-election can be held.

Whether it’s AHL or recall, Wong said the way to deter party-hopping is by empowering non-executive MPs.

“If backbenchers and opposition can be given stronger roles in select committees and have equal development funding for their constituencies, the need to defect would be lessened,” said Wong.

Azalina, meanwhile, believes that a combined recall mechanism and anti-hopping law would work better.

“But to do this, we will need the party leaders to form a caucus for parliamentary reform.”

The former Dewan Rakyat deputy speaker said although the responses have been positive, there was still a lot of confusion on the difference between AHL and the recall election mechanism. 

“But if the government is sincere about reforms, it must look into this,” said Azalina. 

The Bar Council forum was moderated by Nimalan Devaraja while Constitutional Law Committee co-chairperson Karen Cheah gave the welcoming remarks. – September 9, 2021.