The anti-hopping law: Are we all good?

The anti-hopping law: Are we all good?
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Days from the 15th general election (GE15), we are still haunted by the spectre of the Sheraton Move. Will the treachery happen again? Could the electoral mandate be subverted again?

The anti-hopping law (AHL) is supposed to prevent that. But will it?

Just so you know: the phrase “anti-hopping law” is an informal way of referring to that law. The actual law is in the amendments made to the Federal Constitution via the Constitution (Amendment) (No 3) Act 2022, Act A1663. This Act came into effect on Oct 5, 2022.

Let us take a look at the law. Let us see what it does and doesn’t do.

The new Article 49A of the Federal Constitution deals with the change of a member’s political party etc. It states:

“49A. (1) Subject to the provisions of this Article, a member of the House of Representatives shall cease to be a member of that House and his seat shall become vacant immediately on a date a casual vacancy is established by the Speaker under Clause (3) if –

(a) having been elected to the House of Representatives as a member of a political party

(i) he resigns as a member of the political party; or
(ii) he ceases to be a member of the political party; or  

(b) having been elected to the House of Representatives otherwise than as a member of a political party, he joins a political party as a member.

(2) A member of the House of Representatives shall not cease to be a member of that House pursuant to this Article only by reason of –

(a) the dissolution or cancellation of the registration of his political party;
(b) his resignation from the membership of his political party upon election as a Speaker; or
(c) the expulsion of his membership of his political party.”

Loophole

From Article 49A(1)(a), we can see that the AHL seeks to prevent a Wakil Rakyat from leaving the party that he was elected under. It provides that a Wakil Rakyat stands to lose his seat if he resigns from the party or if he ceases to be a member of the party.

But if he is expelled from his party, then he does not lose his seat (Article 49A(2)(c)). This is a loophole.

It is obvious how this loophole can be easily exploited by a cunning frog. He could act extremely recalcitrant, be deliberately disobedient of party decisions and a constant thorn in the side of the party leaders, hoping to be sacked. And if he is sacked, he still gets to hold on to his parliamentary seat. Then, being a Wakil Rakyat without a party, he would be free to legally hop to another party. The AHL does not prevent this hopping from happening. In fact, it gives frogs room to hop. The bottom line is that if you were a frog, you would want to be sacked from your party.

Realising this, parties such as DAP and Amanah have recently applied to the Registrar of Societies (ROS) to amend their party constitutions so that any of their Wakil Rakyat who does not toe the party line would automatically cease to be a member without being sacked. Purportedly, this is how it works: if the party’s head honchos issue you a directive and you do not obey, then you would cease to be a member. Then you lose your seat by virtue of Article 49A(1)(a)(ii). Whether the ROS approves this remains to be seen but ostensibly, this is an attempt to get around the ‘expulsion’ loophole.

One can’t help but wonder if the cure is worse than the malady. Would that not engender a breed of ‘kow-tow bots’ and dissuade a healthy culture of critical thinking and constructive disagreement? Would that not add more lashing power to the party Whip? I can’t see the benefit derived from enhancing the already robotic ways of some of our Wakil Rakyat and reducing them to walking rubber stamps.

Barisan Nasional (BN) deals with this loophole by making BN coalition members take oaths to resign as Wakil Rakyat if they are expelled from their respective parties. This rather curious solution happened at the BN’s oath-taking gathering on Nov 2, 2022 where many oaths were taken. One wonders whether the solution is realistic. Faced with such a jumping situation, a frog would deliberate: “Hey, you’ve already sacked me; so if I break my oath and refuse to resign, what can you do? Sack me?”

Hence, with regard to this slippery loophole, I guess we are caught between the devil and the deep blue frog pond. Why didn’t our lawmakers think of this when they drafted, debated and passed Act A1663?

The procedure of identifying a seat vacancy

When a frog jumps, what is the procedure? The AHL leaves it to the Speaker of the Dewan Rakyat to decide. I do not know why that proposition rings a bell of trepidation? Perhaps it is because in our Malaysian jurisprudence, unfettered executive discretion has been an uneasy burden to bear.

The AHL provides that a Wakil Rakyat ceases to be a Wakil Rakyat if he resigns or ceases to be a member of his political party but his seat shall only become vacant “immediately on a date a casual vacancy is established by the Speaker under Clause (3)…” (Article 49A(1)). [Emphasis added]

Clause (3) of Article 49A states “whenever the Speaker receives a written notice from any member of the House of Representatives on the occurrence of a casual vacancy among the members of the House of Representatives under this Article, the Speaker shall establish that there is such a casual vacancy and notify the Election Commission accordingly within twenty-one days from the date he received the written notice.” [Emphasis added]

A situation like this could arise: a few Wakil Rakyat from DAP are wooed by BN to join them so that BN could form the government. They hold the tipping votes. These few lose their memberships in the party due to disobedience. They are not sacked but letters are issued to them stating that they have ceased to be members of the party. The party informs the Speaker that these Wakil Rakyat have lost their seats. The defecting Wakil Rakyat dispute this. They say that the letters issued to them are tantamount to their expulsion and so therefore, they still retain their seats. How is this resolved?  

The AHL procedure leaves it to the Speaker to decide. The trouble is the AHL does not prescribe any guideline on how the Speaker should decide this. It would be entirely up to the integrity and discretion of the Speaker, qualities upon which we rest our utmost reliance with cautious confidence.

At any rate, the point to note is that if a ‘frog’ infringes the AHL, he does not automatically lose his seat in the Dewan Rakyat; his seat only becomes vacant when the Speaker says so.

A party leaving a coalition

Some reviewers have said that while the AHL seeks to prevent individual frogs from hopping, it does not apply to the Wakil Rakyat whose political party joins a coalition or when it leaves a coalition to join another. So, for example, if after GE15 Amanah, which contested under the Pakatan Harapan (PH) coalition, were to leave PH and join BN to form the government, or if PAS were to leave Perikatan Nasional (PN) and join BN, these reviewers say that this defection does not infringe the AHL.

With all due respect, I disagree.

This is because the definition of “political party” in Article 160(2) of the Federal Constitution as amended by Section 5 of Act A1663, includes a coalition of parties: “… and includes a coalition of such societies which has been registered under any federal law;” [Emphasis added]

That means that Article 49A, which prescribes the triggering of the vacancy of seats in the event of the Wakil Rakyat resigning from the political party or ceasing to be a member of the political party, would also apply to coalitions; just substitute “political party” with “coalition of such societies”.

Hence, it is submitted that in our example, after GE15, if Amanah were to hop to join BN, all Amanah’s Wakil Rakyat shall cease to be members of the Dewan Rakyat by virtue of Article 49A(1). They would be deemed to have ceased to be members of PH and are therefore caught by the prohibition of Article 49A. Likewise, if PAS were to leave PN and join BN.

This makes sense. If we take the purposive approach of interpreting the AHL, we would surmise that the objective of making the AHL was to prevent defections by Wakil Rakyat or coalitions from frustrating the electoral mandate. It would not make sense if that law applied only to individual Wakil Rakyat and not to the coalitions when in the grand scheme of things, people, by and large, vote more for coalitions rather than individuals.

Hence, after GE15, we must all be vigilant and look out for political parties defecting from their coalitions to join another coalition. We must all protest that this defection infringes the AHL. I’m sure we remember that Bersatu left the PH coalition after the Sheraton Move.

Looking at the fractious big coalitions such as BN, PH and PN in GE15 and the perceived new mood of voters, a victory by a single coalition of a clear, dominant majority of 112 seats would be difficult. Thus, serious post-elections horse-trading will likely happen, in order to hammer out a memorandum of understanding (MOU) for a coalition government. Defections of parties from coalitions could be an issue if parties do not grasp the ambit of the AHL.

It must be recognised that the AHL does not prevent any party from having a pact with a coalition. Hence, if ‘kingmaker’ GPS of Sarawak were to have a post-elections pact with PH to form a coalition government, the AHL would not prohibit such an arrangement.

Be that as it may, all parties that have been members of a coalition at the time they went into GE15 will be prohibited by the AHL from switching coalitions post-elections.

Independent candidates

The AHL covers an independent Wakil Rakyat too: Article 49A(1)(b). If by chance, the independent candidate wins, he wins “otherwise than as a member of a political party”. The AHL prohibits him from joining a political party or coalition of parties as a member. He will remain as an Independent throughout the term of Parliament.

It should be noted that Muda is not a member of the PH coalition; it is merely having an electoral pact with PH. Applying the AHL, the seats Muda were to win would be won “otherwise than as a member of a [coalition]”. In that event, Muda would be prohibited from joining any coalition after GE15 by virtue of Article 49A(1)(b).

Freedom of association

I would be remiss if I didn’t apprise you of the fact that Article 10 of the Federal Constitution has been amended by Act A1663. Article 10 is one of the provisions of fundamental liberties under Part 2 of the Constitution. In essence, it guarantees that (a) every citizen has the right to freedom of speech and expression; (b) all citizens have the right to assemble peaceably and without arms; and (c) all citizens have the right to form associations.

Without the amendment, preventing Wakil Rakyat from defecting to another political party would be an infringement of their right to form or leave associations.

The effect of the amendment is that elected representatives, both federal and state, no longer enjoy that same right to form associations as the rest of us citizens, when it comes to joining or leaving political parties.

The amendment is by way of a new Clause (3A) which states: “Notwithstanding paragraph (c) of Clause (2) and Clause (3), the right to form associations conferred by paragraph (c) of Clause (1) in relation to a member of the House of Representatives and legislative assembly of any state shall be subjected to restrictions imposed by Article 49A and Section 7A of the Eighth Schedule respectively.”

Article 48(6) of the Federal Constitution deleted. Why?

Article 48(6) states that: “A person who resigns his membership of the House of Representatives shall, for a period of five years beginning with the date on which his resignation takes effect, be disqualified from being a member of the House of Representatives.” This clause has been deleted by Act A1663.

Read together with Article 49A (1), this deletion allows the frog who resigns and thereby loses his seat to stand for the ensuing by-elections. Your guess is as good as mine as to the wisdom of this amendment. Is this to prevent frogs or to help frogs? Wouldn’t disqualification to run again for five years be a great deterrent to frogging?

Conclusion

Like most Malaysians, I have waited a long time for the AHL. I have expected much from it. It has been touted as a justification for PH signing the MOU to prop up the Umno-led government.

It is supposed to prevent defections of our Wakil Rakyat, preserve the people’s electoral mandate and prevent backdoor governments. I find myself uncomfortably wondering if it will.

Charles CJ Chow, #AnIndependentVoice, writes on law and other things that matter.