Anti-hopping bill should clearly exclude switching coalition

 

The Constitutional Amendment Bill to introduce the anti-hopping law is intended to exclude coalition-hopping from the definition of party-hopping, but the newly added definition of political parties may open doors for a legal challenge. MPs should pay attention to this in the committee stage debate today.

The exclusion of coalition hopping is provided in the illustration for the new Article 49A in the explanatory statement, which reads:

“A member of Party A who is a member of the House of Representatives shall not cease to be a member of that House, if Party A, who is a member of a coalition of political parties, leaves that coalition whether or not Party A joins another coalition of political parties or forms a new coalition of parties.”

This exclusion is reasonable, although it would disappoint Malaysians who want to prevent a replay of Bersatu’s exit from Pakatan Harapan in the Sheraton Move.

It is reasonable because parties should have the freedom to realign and should not be reduced to factions within parties for being a member of a pre-election coalition.

If coalition-hopping is covered, when fundamental differences develop within a coalition such as the divide over Hudud punishments in Kelantan that broke Pakatan Rakyat in 2015, then whichever parties pull out first, or are sacked by the rest or choose to dissolve the coalition (depending on how the law is worded), they would lose all their parliamentary seats and face by-elections.

Would this have been fair to PAS who was singled out in 2015? Alternatively, if DAP left the opposition coalition first as it did in 2001 (also over Hudud), should it lose all parliamentary seats?

However, the illustration above is only in the explanatory statement, and not part of the main text of the bill. Would an explanation have an effect in law or outweigh the main text of the law if they contradict each other?

Definition of political party

The potentially contradicting part is in the amendment to Article 160 of the Federal Constitution, which adds a definition of political parties (not recognised hence not defined in the original Federal Constitution), which reads:

“Political party” means -

a) Any society which by any of its objects or rules, regardless of whether such object or rule is its principal object or rule, or constitutes merely an object or rule which is ancillary to its principal object or objects or to its principal rule or rules, makes provision for the society to participate, through its candidates, in elections to the House of Representatives, or to a State Legislative Assembly; or

b) Any society which, notwithstanding anything contained in its objects or rules, carries on any activity or pursues any objective which involves its participation, through its candidates, in elections to the House of Representatives, or to a State Legislative Assembly, and includes a coalition of such societies which has been registered under any federal laws.

This definition except the last clause is a copy-and-paste from the Societies Act. Under the Societies Act, political coalitions are registered as political parties.

There are five coalitions registered: BN, Harapan, Perikatan Nasional (PN), Gabungan Parti Sarawak (GPS) and Gabungan Rakyat Sabah (GRS). Two parties - Bersatu and Parti Solidariti Tanah Airku (Star) - are members of both PN and GRS.

Potential lawsuits

How can this cause a problem for the exclusion of coalition-hopping?

Look at the part of the new Article 49A that causes vacation of seats for MPs elected under party tickets:

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 the 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;

If in the future, Bersatu or Star decides to pull out from PN or GRS (whichever case may be) after having their parliamentarians elected under such a coalition, would not Article 49(1)(a) cause their MPs to lose their seats because they have resigned or ceased to be a member of PN/GRS (technically, the party)?

As any MP can write to inform the speaker of any seat vacancy caused by party hopping under Article 49A(3), would this not open the door for lawsuits between MPs and the speaker?

If coalition-hopping is not intended to be covered by the anti-hopping bill, then the definition of political parties added to Article 160 should be revised as “(but excludes) a coalition of such societies which has been registered under any federal laws” instead of the original wording “and includes”.

I hope the MPs will pay attention to this point in the committee stage debate today to remove the unnecessary and problematic ambiguity. - Mkini

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WONG CHIN HUAT is a professor at Sunway University. The Essex-trained political scientist specialises in political institutions and group conflicts. Mindful of humans' self-interest motivation while pursuing a better world, he is a principled opportunist.