Constitutional amendment overreaches objective, open to abuse

The Malaysian Bar notes with alarm the intention of the Malaysian government to amend the Federal Constitution by way of the proposed Constitution (Amendment) (No 3) Bill 2022 (Bill) at a special Parliament sitting today (April 11, 2022).

The proposed constitutional amendment, if passed by the requisite two-thirds majority, will then pave the way for the subsequent introduction of legislation to counter the changing of political allegiances of incumbent members of Parliament and/or members of State Legislative Assemblies, merely on a simple majority basis.

The Malaysian Bar’s observation of the proposed constitutional amendment is that it is treacherous on many counts - because it does not stop at just anti-hopping but overreaches to possible abuse by the ruling government to control other political parties.

The proposed amendment is a simplistic approach to the prevailing multitude of anti-hopping issues currently faced in our nation, which may cause MPs or members of state assemblies to lose their seats.

Amendments do not prevent party-hopping

Article 48 of the Federal Constitution already provides for such circumstances. Amending Article 10 of the Federal Constitution without amending Article 48 will not prevent party hopping, and as such, any subsequent anti-hopping law passed should still be regarded as unconstitutional.

What the proposed constitutional amendment does is, it will allow laws to be made to control the membership of MPs or members of state assemblies in their respective political parties.

There are several possible permutations to this proposed constitutional amendment that does not address the anti-hopping issue, but instead create a whole different dynamic on democratic abuse:

(1) A law can be passed to expel MPs from their political party for being fined RM1,000 (or whatever discretionary quantum)

(2) A law could be also be passed to expel MPs and/or state assemblypersons who have been arrested on national security grounds, which would then cause them to lose their membership in their respective political parties

(3) A law can be passed to expel MPs and/or assemblypersons who are being charged in court; or

(4) A law can be passed to expel MPs and/or assemblypersons from their political party for commencing legal action before the courts for any grievances that they may have, whether on disciplinary issues or otherwise.

The permutations not related to anti-hopping vary and are many, including the possible control by political parties under the guise of societies under the Societies Act 1966 through its constitution, which can be amended without the oversight of Malaysian citizens.

In essence, the proposed amendments will cause MPs and/or assemblypersons to lose their freedom of association more than ever when it comes to their respective membership in political parties in the event that the Constitution has prevailing articles that would disadvantage their positions, or in the event that it is amended to cater to such an abuse.

Hence, this constitutional amendment may create a situation where the ruling government of the day can create greater control over its members and other coalition political parties.

A practical anti-hopping law

The key question to be asked is whether such a constitutional amendment should be made with such haste and without proper consultation of all stakeholders, given the basic structure doctrine, the nature and scope of the proposed constitutional amendment to be passed by a two-thirds majority and a subsequent law by way of a simple majority in Parliament that can control political parties, and the relationship between any laws on the disqualification of MPs as a result of party-hopping, bearing in mind Article 48 of the Federal Constitution.

The Malaysian Bar has continuously called for an anti-defection law to be put in place to nurture the growing maturity of the country as a democratic nation. It is our concerted view that a piece of legislation is necessary to ensure that the public’s faith in the political and governmental system is restored and that there is certainty and transparency in the Parliament.

Party-hopping has become a common political phenomenon in the Malaysian political scene over the last three decades, more so since GE14, where we have seen three dramatic changes to the government of the day. Some say it is almost as if GE14 did not happen and people did not cast their votes.

The migration of party members from one party to another has become the subject of scrutiny by politicians and the public alike. There is no question about the necessity to enact an anti-defection law in Malaysia.

In this premise, the Malaysian Bar supports having an anti-defection law which is workable and practical, as a matter of public order and morality, to regulate politicians and instil political and government stability.

However, it is critical that any legislative amendments must address anti-hopping to create a credible democratic process and a stable government, not one that is imbalanced and flouts the democratic process or enables possible abuse.

Here in Malaysia, especially seen in hindsight after GE14, it is evident that Malaysian citizens did not place as much importance on the individual politicians in comparison to the party they were voting for.

This is essentially why party-hopping and defecting to the opposing party are strongly criticised. Party-hopping under the current climate and sentiments is even more severe, as the whole premise of voting for each representative or minister rests on the people’s faith in the party, not the candidate, and switching parties would be seen as undemocratic and a breach of faith on the will of the voters.

The Malaysian Bar maintains that a candidate switching to another political party holding different ideologies after the people have voted is regarded as a breach of trust and politically immoral in the eyes of the voters, as the hopping politician has essentially cheated voters of their mandate.

Giving political parties ‘overwhelming power’

While party-hopping by sitting MPs or assemblypersons has contributed to the unsatisfactory state of political instability that besets Malaysia, the proposed amendment as currently framed would grant political parties overwhelming power to force the vacation of parliamentary or state assembly seats through expulsion from the party for disciplinary reasons. 

Without proper safeguards, which must be written into the anti-hopping legislation, political parties will have a free and unchecked hand in dismissing elected representatives who disagree with those who control the political parties.

Dissension and opposition within political parties would be dealt with by summarily instituting disciplinary proceedings. Rather than promoting principled democracy, such provisions in an anti-hopping law will be a death knell for democracy.

In the view of the Malaysian Bar, there is no need to amend Article 10 of the Federal Constitution to abrogate the freedom of association of members of political parties, and specifically, elected representatives. 

The existing provisions already permit restrictions on the freedom of association based on public order or morality. An unprincipled change of political affiliations - based on personal gain or promises, hopes of political advancement, or both - is a perversion and betrayal of the trust placed by the electorate in their elected representative. Legislation should be introduced to make this absolutely clear.

An amendment to the Federal Constitution is not required in respect of Article 10. Voters vote on the basis of trust, and trust is an issue of morality. Article 10 already touches on the issue of morality and a breach of trust is one that contravenes political morality.

Where a constitutional amendment is required, it is the Malaysian Bar’s view that this pertains to Article 48(6) of the Federal Constitution, which disqualifies an MP who resigned from his/her seat from standing as a candidate for Parliament for a period of five years from the date of resignation. 

This needs to be repealed. An honourable parliamentarian who seeks to switch political allegiance and who thus resigns the seat to force a by-election to obtain a fresh mandate from the electorate should be supported, not punished. 

Such a parliamentarian should be allowed to seek support or endorsement from his/her respective constituencies for a change in political allegiance. That is the principled and honourable course of action to take.

The Malaysian Bar, therefore, calls upon the government not to amend Article 10 of the Federal Constitution and to withdraw its proposals for the same. We further call upon the government to remove the disqualification provisions contained in Article 48(6) of the Federal Constitution.

Finally, we call on the government to quickly introduce anti-hopping legislation as promised without the need to empower political parties to abuse their position by purportedly expelling members who disagree with their party and immediately triggering a by-election.

Malaysian citizens should be rewarded when our elected representatives are able to develop a practice of seeking on their own accord, a fresh mandate from their electorate votes, should circumstances require them to change their political allegiances. - Mkini

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KAREN CHEAH YEE LYNN is president of the Malaysian Bar.

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