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Monday, August 30, 2021

An anti-hopping law is futile

 


A Malay proverb once stated, “Galas habis senggulung tandas, laman dihitung rugi jua” (embarking on a futile effort). That sums up enacting the Anti-Hopping Law. The push is futile since it fails to address the main issue: the collapse of governments.

Politicians opined that the Anti-Hopping Law is the antidote for political and economic precariousness. It is supposed to avoid the fall of governments due to political crossovers amongst members of Parliament (MP) and state assemblypersons (ADUN). In reality, an Anti-Hopping Law is not the solution.

“Party-hopping” is a political phenomenon that only indicates the symptom, not the illness. If the proposed law is meant to address the symptom instead of the illness, then it is destined to fail. The real issue is the loss of majority support in legislative bodies (i.e. in Dewan Rakyat or state assemblies).

In Malaysia, there are two ways of legally establishing (and unseating) a government. Firstly, via election. Secondly, via the appointment of the prime minister under Article 43 (2) (a) Federal Constitution without going through an election. However, the first method depended on the second method i.e. commanding the majority support from members of Dewan Rakyat.

Article 43 (2) (a) consists of two (2) parts.

Firstly, Article 43 (2) (a) provided that the Yang di-Pertuan Agong shall appoint the prime minister (PM) from amongst the MPs in Dewan Rakyat. Secondly, it stated that Agong shall appoint a PM who in his opinion commands the majority support amongst MPs. This part is the “thorn in the flesh”. Without majority support from MPs, the aspiring lawmaker cannot be legally appointed as the PM. As a result, his political coalition cannot form a cabinet.

Upon close examination, the second part in Article 43 (2) (a) does not refer to any political party and/or political coalition. This leads to the inference that the majority support from MPs is an individual decision, not a party-led one. Impliedly, by virtue of Article 43 (2) (a) the Constitution allows political crossovers.

What the proponents failed to realise is that the Anti-Hopping Law cannot prevent the loss of majority support in the scenarios of political defection and non-political defection. Such a phenomenon occurred in 2020 whereby the change of governments both in the federal and several states such as in Kedah, Malacca, Johor and Perak took place.

For instance, the appointment of Pagoh MP Muhyiddin Yassin as the 8th PM by the king was a combination of these two scenarios. There were MPs who defected from their political party to support Muhyiddin, such as Gombak MP Azmin Ali, Ampang MP Zuraida Kamaruddin and Indera Mahkota MP Saifuddin Abdullah.

At that same time, no Umno MPs defected to make up the total majority support of the MPs toward Muhyiddin. Consequently, the YDPA appointed him as the PM upon the fulfilment of Article 43 (2) (a).

Non-political defection also occurred in the collapse of the Perak government in 2020 under the leadership of ADUN Chenderiang Ahmad Faizal Azumu. He was defeated in a confidence vote in the state assembly. The defeat was a collective effort from the majority of elected reps in Perak (inclusive of those from Umno and DAP) without a single ADUN from DAP defecting.

Recently, Muhyiddin had to resign after 14 Umno MPs withdrew their support. Did any of the Umno MPs defect? No. Did the federal government collapse? Yes.

The above examples proved that governments can and will collapse, even without political crossovers. Needless to say, any government in Malaysia can be toppled without the need of “party-hopping”. If such is the case, why the need to legislate an Anti-Hopping Law? All that is needed are for MPs to withdraw their majority support.

Some would argue that the formation of governments by political crossovers is undemocratic since it circumvented the election. The answer is simple. There are situations in which the stakeholders cannot afford to wait until the current mandate expires and for elections to take place (e.g. political crisis). Covid-19, for instance, renders elections unsafe. As such, Article 43 (2) (a) provides the solution without the need for the Agong to dissolve Parliament and hold elections. It is still democratic because it is allowed by the law.

Further, prior to passing the Anti-Hopping Law, Article 43 (2) (a) has to be amended with a two-thirds majority in Parliament. In fact, other relevant Articles such as 10 (1) (c) on the freedom of association and 48 (1) on the disqualification of MPs will need to be amended as well. Amending Article 48 (1), for example, will introduce a new clause that disqualifies politicians of their status as MPs for “party-hopping”.

If all or any of these constitutional amendments are approved, politicians are affected as they will be rooted out from the centre of political power. Is this not contrary to the ends of politicking?

Admittedly, political crossovers have gradually eroded public confidence in democratic institutions such as elections. However, what is the solution for politicians once their parties deviate from the political struggle? Is it plausible for these politicians to remain as “political prisoners” in the party? Is it justifiable to demand the vacancy of their respective seats once they crossed the floor?

Such notion is against the decision of the then Supreme Court (now Federal Court) in Dewan Undangan Negeri Kelantan v Nordin bin Salleh that underscored the freedom for association in Article 10 (1) (c) entailed the right to defect and to form a new association.

Parliament’s priority should be directed to legislate a Political Funding Law, instead of the Anti-Hopping Law. While the latter is futile, the former will prevent the recurrence of infamous bribery cases such as 1MDB. It will ensure the flow of money funding political activities is legitimate.

This will avoid politicians from being implicated in money laundering. In fact, the passing of a Political Funding Law will ensure cases relating to “political donation” will be adjudicated transparently in court. Party-hopping does not cause governments to collapse. Bribery amongst politicians does.

Political stability can only be achieved via political maturity. Politicians ought to think carefully about the implication of an Anti-Hopping Law. Its success in other countries is not a guarantee that it is doable in Malaysia. Lest they regret, as per the Malay proverb, “Takutkan tuma dibuangkan kain, takutkan hantu terpeluk bangkai” (for the fear of smaller misfortune, a bigger setback befalls instead). - Mkini


MOHD RIDWAN TALIB is a Legal Practitioner and a postgraduate student at the Faculty of Law and Syariah, Universiti Sains Islam Malaysia (USIM).

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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