How to enact anti-hopping law

 

From Philip Koh

A concluded election should result in five years of stability. However, when the results of such an election are brought into question, the consequences are deleterious to proper governance.

The defection of elected members of the legislative assembly undermines democratic governance as those who exercised their right to vote become disaffected. Wrongful pressure may also be placed upon the constitutional head to ascertain who commands the confidence of the majority of the legislative assembly.

This draws the constitutional head into the political thicket, impairing its role as an impartial umpire overseeing a transition of executive power.

The process of evaluation of the elected member defections by way of statutory declarations or interviews gives rise to unease.

It is, therefore, imperative that an anti-defection law be introduced.

However, in order to introduce this new law, an amendment to the Constitution has to be made in order to rectify the precedent that anti-defection laws contravene Article 10 of the Federal Constitution which deals with the freedom of association.

Article 10(1)(c) of the Federal Constitution pronounces the right to freedom of association. It means a citizen has the guaranteed rights to form, join, not to join or resign from an association.

Any constitutional amendment ought to be simple and concise, deal with the construction of Article 10 without extended reference to political party complexities and confine itself to the Dewan Rakyat and not the Dewan Negara as the source of disaffection is the defection of MPs.

A single new constitutional provision should be passed: “The seat of a Member of Parliament shall become vacant when he ceases to be a member of, or resigns or is expelled from the political party for which that member contested in the election.” The Singapore Constitution contains a similar provision.

Meanwhile, the simplicity and conciseness will obviate delay to the passing of anti-defection laws.

After passing such an amendment, state assemblies may also convene to pass similar anti-defection laws in their respective state constitutions.

The courts will be under a duty to give weight and meaning to this constitutional amendment as the baneful impact of the extended meaning given to “freedom of association” to strike down anti-defection laws will be rectified. - FMT

Philip Koh is adjunct professor at Universiti Malaya and Monash University Malaysia.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.