A golden opportunity to amend the Constitution properly and fairly to stop party-hopping by elected representatives has been temporarily or even more permanently halted by a sneaky move by the backdoor BN government to insert a clause which will give it powers to change vital laws with a simple majority.
Whether a compromise solution can be found or not depends on how much PM Ismail Sabri Yaakob is prepared to concede given that the changes were suggested by the cabinet itself and were inserted at the very last minute.
The new, surprise proposal basically provided for the introduction of future legislation with a simple majority which the government of the day could use to control other political parties and personal freedoms. The Bar Council has explained this further, calling it “treacherous on many counts — because it does not stop at just anti-hopping but overreaches to possible abuse of the ruling government to control other political parties.”
It was good that the opposition would have none of it and forced Ismail Sabri to agree to a Parliamentary Select Committee (PSC) to review the bill. But that will needlessly delay it which is perhaps what some parties want.
Some sections within Umno, notably the court cluster of Najib Razak and Ahmad Zahid Hamidi and supporters, want early elections as soon as possible as they face serious criminal charges that threaten their political careers and may see them end up in jail.
But others such as Ismail Sabri and associated supporters may want to delay it to remain in power and alter the balance in their favour in the meantime. The longer they wait, the better.
The ill-prepared opposition will of course want the amendments, which seem to be a condition for elections to be delayed as well to improve their position and make badly needed readjustments to their strategies and actions.
The objective of both seems to be achieved given that it will inevitably take more time than necessary for the PSC to make its recommendations.
The full list of PSC members is given in this article and includes one Hamzah Zainuddin who hopped from Umno to Bersatu. Really, should such a person even be on the committee?
Considering that this backdoor government eventually came to power because of party hopping by members of the Pakatan Harapan coalition which won the May 2018 elections, one has to ask how much interest there really is to control party hopping by those in power now.
Having said that, Umno may still be interested in such legislation considering that 13 of its members left for Bersatu, doubling the latter’s number to 26 in one stroke and becoming part of Harapan. They would like to prevent this but on their own terms, if they came to power so as to be able to retain their MPs.
Harapan freely allowed these transfers, becoming complicit in this nefarious practice, at one time commanding 139 seats (instead of 121 at the end of GE14) together with its Sabah allies, of which the main one was Warisan. It was just nine short of two-thirds majority of 148 in March 2019.
And then came the infamous Sheraton Move of Feb 25, 2020 just over a year later. Muhyiddin Yassin moved Bersatu and its bloc of 26 MPs into an alliance with Umno and PAS, simultaneously with that other traitor Mohamed Azmin Ali who took 10 other PKR MPs with him.
It was more than enough to bring down the Harapan government and leave Dr Mahathir Mohamad in the lurch. Mahathir later wrote in his book that he allowed Home Minister Hamzah Zainudin to court Umno and PAS but was betrayed. Poetic justice some would say for Mahathir betrayed Harapan, but it was hardly justice for the rakyat.
Key issues
Thus, more or less all players freely engaged in these practices in the past which they all condemn now and agree that there should be changes. But what changes? Drafting is the easy part, but before that, they have to agree on the changes which are not difficult really.
Here are some of the key issues:
1. Will political parties be allowed to hop from one coalition to another?
If they stood for the elections as a coalition then perhaps they should not. The basic principle should be to keep to the allegiances they implicitly or explicitly promised to the electorate. Thus, Bersatu which was not only a coalition partner but contested under the PKR banner should not have been allowed to jump under the new amendments.
However, what about if there are genuine differences among coalition partners? It may be better to leave party affiliations out of the whole equation and leave that to evolve naturally over time. Let parties move, not individual MPs. This seems to be what the political parties themselves have agreed to going forward.
2. What restrictions should apply to individual MPs who hop?
The general consensus among political parties here appears to be they should resign and new elections held but with the proviso that the person who hops be allowed to contest in the by-elections. Currently, the Federal Constitution does not allow this for five years after resignation under Article 48(6).
However, this is quite easily resolved by removing the amendment which would require a two-thirds majority in Parliament as with all major constitutional amendments.
3. What about freedom of association?
In a 1992 decision, the then Supreme Court ruled that elected representatives had the right to jump parties because of Article 10(1)(c) which says that “all citizens have the right to form associations.”
Many considered the decision too broadly defined the concept of freedom of association. There are two things that can be done - go to the Federal Court for a review of the judicial decision or use Article 10(2)c which permits Parliament to impose “such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality” with respect to freedom of association.
That’s really not difficult to do at all. For instance, the Singapore Constitution, which provides for freedom of association, simply says in Article 46(2)(b) that “the seat of a Member of Parliament falls vacant if he ceases to be a member of, or is expelled or resigns from the political party for which he stood in the election.”
4. What about expulsions from the party?
This could be a problem for some, the example given being Muhyiddin Yassin’s expulsion from Umno in 2016. But so long as the person is given the opportunity to contest in a by-election, as explained in point 2, he has an opportunity to let the electorate decide.
But this is likely to be a sticking point among some of the political parties.
Overall, although no political party will say it (they all affirm they want it) none appears to be too keen to see anti-party hopping laws come to fruition soon. Surprising since it is really a very simple process - adding a simple clause to the constitution and removing one, and this can be drafted in mere minutes as below:
Add to Article 10 (1): “The seat of a Member of Parliament falls vacant if he ceases to be a member of, or is expelled or resigns from the political party for which he stood in the election.” (borrowed from the Singapore Constitution)
Remove Article 48 (6) which reads: “A person who resigns his memberships 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.”
Leave it to politicians to complicate a rather straightforward and simple issue. - Mkini
P GUNASEGARAM, a former editor at online and print news publications, and head of equity research, is an independent writer and analyst.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.
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