Anti-hopping law could stymie formation of new govt

 

There is much conjecture around that GE15 could result in a hung parliament, where no one coalition achieves a simple majority.

Under such a situation, the new anti-hopping provision now embedded within Article 49 of the Federal Constitution could prevent the formation of a new workable government.

Article 49(A) contains stipulations about any change in a member’s political party status, which has many political implications potentially relevant to the formation of any new government.

In a hung parliament, the political coalition with the most number of seats will seek additional political parties to join the coalition or seek individual members to either join or support the coalition.

Where neither Pakatan Harapan, Barisan Nasional nor Perikatan Nasional do not have enough members to achieve a simple majority, they will seek support from the Sarawak and Sabah-based groupings. However, Gabungan Parti Sarawak in Sarawak has already stipulated that they are not prepared to work with PH.

Should PH have the numbers that many polls are suggesting, then GPS support for BN or PN would not give either coalition a simple majority.

The other option is for individual parties to break away from an existing coalition and join another. Umno could join PH, or PKR could join with Umno and PAS, or BN could join with DAP, etc.

However, none of these combinations would be acceptable to some members and their voters, thus leading to an uproar.

This means the only way to break the deadlock would be to seek the support of extra members through defection, or some other pledges of support for a prime ministerial candidate.

This will potentially run up against a number of issues with Article 49(A).

If whole political parties switch allegiance to another coalition, all the party members may be caught out by Article 160 (2) of the Federal Constitution. Article 160(2) defines a political party to include a coalition of parties. Thus under Article 49 (A), any member who joins another coalition with their political party could trigger a seat vacancy.

If an MP leaves his political party to join another coalition, as after the last general election, this would trigger Article 49(A), thus creating a vacancy. In addition, if an independent candidate wishes to join a coalition after the elections, Article 49(A) would prevent the member from doing so.

What will make the anti-hopping law even more cumbersome and complex is that the Speaker of the Dewan Rakyat will have immense power and influence over what actually happens. Under Article 49(A) all discretion is left to the Speaker, as to whether any vacancy exists within the House.

Ambiguous situation before Parliament convenes

The situation is even more complex before MPs have been sworn in, and while there has been no Speaker.

Technically, Article 49(A) does not apply to non-members of Parliament. In addition, without a Speaker, there is no person designated to declare seat vacancies. Thus, Article 49(A) becomes irrelevant.

However, this does not mean the law can become retrospective, and be applied after Parliament is convened. Discretion in the hands of a partisan Speaker could be dangerous.

Thus, the anti-hopping law can become a political tool, rather than a legal remedy. What was intended to be a noble law preventing politicians switching parties and betraying electors, could become an albatross around Malaysian democracy. - FMT

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