This article first appeared in Forum, The Edge Malaysia Weekly on October 26, 2020 - November 1, 2020

Malaysia is no stranger to the world of legislators switching allegiances during their term. The number of defections hit an unprecedented level in 2020 when the elected Pakatan Harapan (PH) federal government collapsed, followed by the fall of a string of PH state governments.

Voters may feel betrayed and are likely to negatively alter their voting behaviour in future elections, such as refusing to vote. Thus, it is important to examine the reasons for the “hopping” behaviour of legislators and also the policy measures to manage this issue.

Beyond the view that a legislator hops to get a better “deal”, there are other motivations behind such moves (Heller and Mershon, 2008), notably:

1. policy positioning of a legislator;

2. political party positioning;

3. ability of a political party to influence outcomes; and

4. ability of a legislator to influence such outcomes.

The structures of Malaysia’s electoral system and party politics provide an interesting perspective to the hopping of legislators across party lines. In this country, one important question that has to be addressed is the election of individual representatives for constituencies. Who or what is being voted for — is the voter entrusting the vote to a candidate, party, coalition or all of them ? (Wong Chin Huat [2020] — Why recall elections and not anti-hopping law?).

Second, while there are calls for hopping legislators to resign, there is a law in Malaysia that deters this act. Currently, our federal and state constitutions bar a legislator who resigns mid-term from contesting for the next five years.

Third, the 1992 Supreme Court decision on the Nordin Salleh case (Mohamed Reza [2020] Freedom of association: From Nordin Salleh to Khaliq Mehtab) declared that an anti-hopping law at the state level goes against the concept of freedom of association, which is protected by the Malaysian Constitution. As a result, the status quo makes any state-level anti-hopping law ineffective.

In the light of these obstacles, the following are two recommendations to manage political hopping in Malaysia.

Anti-party-hopping laws disqualify the legislator from continuing his or her term in legislature due to switching allegiances and/or expulsion from the party. The advocates of this law argue that the defecting legislator breached the faith of voters, hence such a law can strengthen the party, prevent larger parties from luring smaller parties in exchange for rewards, and uphold accountability. There are variations of anti-party-hopping laws throughout the world, which can be summarised to the following situations whereby the elected representative loses the seat when:

1. He or she resigns from the original party.

2. He or she moves to another party.

3. He or she is expelled from the original party.

The main benefit of this mechanism is that the consequences that are subjected on the defecting legislator are immediately effective. The only financial cost for the above measure will be the by-election.

However, an all-encompassing anti-party-hopping law will greatly strengthen the influence and authority of a political party over its representatives. It may introduce a bigger problem, where legislators could ignore the will of the people to avoid being expelled by their political party, thus losing their seats.

This law is also limited to only penalising hopping by individual legislators and could not be applied when political parties (with their representatives) switch coalitions en masse during an elected term. For example, Penang’s anti-party-hopping law is unable to remove the two state representatives of Bersatu although the party left the PH coalition that rules the state. While voters may see a betrayal of their mandate, an anti-party-hopping law is ineffective in disqualifying the elected representatives in this circumstance.

For Malaysia, a limited anti-party-hopping law should be explored in terms of the following:

1. Adding a clause to Article 10 (2)(c) of the Federal Constitution, whereby party hopping is prejudicial to public order (J Loh [2020] — Outlawing party hopping for good).

2. Adding a clause to Article 51 of the Federal Constitution, whereby a legislator will lose his or her seat in Parliament when he or she resigns from the party (which he or she stood originally for in the previous election).

According to the International Institute for Democracy and Electoral Assistance (International IDEA), a recall election is a procedure for voters to remove their elected legislator through a direct vote before that legislator’s term has ended. This will give voters power to control the behaviour of the legislator. This mechanism can also be used when voters perceive that their legislator is not performing his or her functions to the electorate’s expectations.

According to International IDEA, a recall election has two main stages:

1. Initiation of the recall process, whereby a sufficient number of signatures are collected to support the recall.

2. Upon the attainment of verification and with the required level of support, the recall vote takes place.

Some key considerations for this mechanism:

1. A voter of a given constituency of the age of 18 and above (together with 1% of electors of the constituency) may launch the recall initiative.

2. Signatures should only be collected once the proposed recall initiative is successfully filed at the Election Commission (EC). A maximum period of four months could be given to collect the signatures.

3. The recall vote will be only called should there be a petition of 10% of current registered voters (signatories) of the entire constituency before the recall takes place. All signatures must be verified by the EC prior to the start of the recall vote within 30 days after the petition is filed.

4. The recall vote is to be initiated within 60 days, when the recall vote is successfully verified.

5. The incumbent is removed when the majority of registered voters participate in the recall vote and the votes for recall exceed the number of votes not in favour of recall.

6. After a successful recall, a normal by-election will be called to fill the vacancy.

In the context of Malaysia, recall mechanisms can be utilised for instances such as when an elected representative is expelled from his or her initial party and for political parties that switch coalitions. The recall mechanism can also be employed for other scenarios such as penalising a legislator who has been convicted of a crime but escapes disqualification due to the leniency of the punishment.

Recall elections can be introduced at the state and federal level via constitutional amendments. Unlike an anti-hopping law (due to the 1992 Nordin Salleh case), recall elections could be introduced at the state level without a parliamentary act.

While this mechanism is laudable, we should be aware of the financial cost of this process. With a recall process, costs will include the signature verification process, the drafting of the specific proposal and the conduct of a recall vote. Should the incumbent be recalled, there will be the additional cost of a by-election.

Since the 2018 general election, each by-election for a state constituency costs about RM1 million to RM2 million and for a federal constituency, RM3 million to RM4 million. Second, the effect of recall elections on the defecting politician is not immediate, due to multiple procedures for recall.

Conclusion: In the light of ever-increasing political instability in Malaysia, both anti-party-hopping laws and recall elections should be closely studied.

Danesh Prakash Chacko is a research analyst at Sunway University’s Jeffrey Cheah Institute on Southeast Asia. He specialises in topics of redelineation and other Malaysian electoral matters. He would like to thank his electoral reform advocacy group — Tindak Malaysia volunteers (Henry Lim Kah Chean, Fork Yow Leong and Piang Yow Wong) — for submitting these options to him to evaluate their advantages and disadvantages, as well as Sunway University’s Professor Wong Chin Huat for providing very constructive feedback.

Save by subscribing to us for your print and/or digital copy.

P/S: The Edge is also available on Apple's AppStore and Androids' Google Play.