‘Cunning frogs’ may jump through loophole in anti-hopping law

 

From Charles CJ Chow

Days from the 15th general election, we are still haunted by the spectre of the Sheraton Move. Will the treachery happen again? Could the electoral mandate be subverted again?

The anti-hopping law is supposed to prevent that. But will it?

Just so you know: the phrase “anti-hopping law” is an informal way of referring to that law. The actual law is in the amendment made to the Federal Constitution via the Constitution (Amendment) (No. 3) Act 2022, Act A1663. This Act came into effect on Oct 5, 2022.

Let us take a look at the law. Let us see what it does and doesn’t do.

The new Article 49A of the Federal Constitution deals with the change of a member’s political party, etc.

It states:

“49A. (1) Subject to the provisions of this Article, a member of the House of Representatives shall cease to be a member of that House and his seat shall become vacant immediately on a date a casual vacancy is established by the Speaker under Clause (3) if –

(a) having been elected to the House of Representatives as a member of a political party

(i) he resigns as a member of the political party; or,

(ii) he ceases to be a member of the political party; or,

(b) having been elected to the House of Representatives otherwise than as a member of a political party, he joins a political party as a member.

(2) A member of the House of Representatives shall not cease to be a member of that House pursuant to this Article only by reason of –

(a) the dissolution or cancellation of the registration of his political party;

(b) his resignation from the membership of his political party upon election as a Speaker; or,

(c) the expulsion of his membership of his political party.”

Loophole

From Article 49A(1)(a), we can see that the anti-hopping law seeks to prevent an MP from leaving the party that he was elected under.

It provides that an MP stands to lose his seat if he resigns from the party or if he ceases to be a member of the party.

But if he is expelled from his party, then he does not lose his seat (Art 49A(2)(c)). This is a loophole.

It is obvious how this loophole can be easily exploited by a cunning frog. He could be deliberately disobedient and a constant thorn in the side of the party leaders, hoping to be sacked.

If he is sacked, he still gets to hold on to his parliamentary seat. Then, he would be free to legally hop to another party. The anti-hopping law does not prevent this from happening. The bottom line is that if you were a frog, you would want to be sacked from your party.

Realising this, parties such as DAP and Amanah have applied to the Registrar of Societies (RoS) to amend their party constitutions so that their MPs who do not toe the party line would automatically cease to be a member of the party without being sacked.

Purportedly, this is how it works: if the party issues you a directive and you do not obey, you cease to be a member. Then you lose your seat by virtue of Article 49A(1)(a)(ii). Whether RoS approves this remains to be seen but, ostensibly, this is an attempt to get around the “expulsion” loophole.

One can’t help but wonder if the cure is worse than the malady. Would that not engender a breed of “kow-tow bots” and dissuade a healthy culture of constructive disagreement?

Barisan Nasional (BN) deals with this loophole by making BN coalition members take oaths to resign as MP if they are expelled from their respective parties.

One wonders whether this solution is realistic. A frog would deliberate: “Hey, you’ve already sacked me; so if I break my oath and refuse to resign, what can you do? Sack me?”

Hence, with regard to this slippery loophole, we are caught between the devil and the deep blue frog pond. Why didn’t our lawmakers think of this when they drafted, debated and passed Act A1663?

The procedure

When a frog jumps, what is the procedure? The anti-hopping law leaves it to the Speaker of the Dewan Rakyat to decide. I do not know why that proposition rings a bell of trepidation. Perhaps it is because in Malaysia, unfettered executive discretion has been an uneasy burden to bear.

The anti-hopping law provides that an MP ceases to be one if he resigns or ceases to be a member of his political party but his seat shall only become vacant “immediately on a date a casual vacancy is established by the Speaker under Clause (3) …” (Article 49A (1)).

Clause (3) of Article 49A states that “whenever the Speaker receives a written notice from any member of the House of Representatives on the occurrence of a casual vacancy among the members of the House of Representatives under this Article, the Speaker shall establish that there is such a casual vacancy and notify the Election Commission accordingly within 21 days from the date he received the written notice.”

A situation like this could arise: a few MPs from DAP are wooed by BN to join them so that BN could form the government. They hold the tipping votes. These few lose their memberships in the party due to disobedience. They are not sacked but letters are issued to them stating that they have ceased to be members of the party.

DAP informs the Speaker that these MPs have lost their seats. The defecting MPs dispute this. They say that the letters issued to them are tantamount to their expulsion and so, therefore, they still retain their seats. How is this resolved?

The anti-hopping law procedure leaves it to the Speaker to decide. The trouble is that the anti-hopping law does not prescribe any guideline on how the Speaker should decide this. It would be entirely up to the integrity and discretion of the Speaker, qualities upon which we rest our utmost reliance with cautious confidence.

The point to note is that if a “frog” infringes the anti-hopping law, he does not automatically lose his seat in the Dewan Rakyat; his seat only becomes vacant when the Speaker says so.

A party leaving a coalition

Some have said that while the anti-hopping law seeks to prevent individual frogs from hopping, it does not apply to the MP whose political party joins a coalition or when it leaves a coalition to join another.

So, for example, if after GE15, Amanah, which contested under the Pakatan Harapan (PH) coalition, were to leave PH and join BN to form the government, these reviewers say that this defection does not infringe the anti-hopping law.

With all due respect, I disagree.

This is because the definition of “political party” in Article 160 (2) of the Federal Constitution as amended by Act A1663, includes a coalition of parties: “… and includes a coalition of such societies which has been registered under any federal law”.

That means that Article 49A, which prescribes the triggering of the vacancy of seats in the event of the MP resigning from the political party or ceasing to be a member of the political party, would also apply to coalitions; just substitute “political party” with “coalition of such societies”.

Hence, after GE15, if Amanah were to hop to join BN, all Amanah’s MPs shall cease to be members of the Dewan Rakyat. They would be deemed to have ceased to be members of PH and are therefore caught by the prohibition of Article 49A.

Many predict that GE15 will result in a coalition government. Thus, horse-trading will abound, to hammer out the agreement for the coalition government.

Defections of parties from coalitions could be an issue if parties do not grasp the ambit of the anti-hopping law.

Having said that, it must be recognised that the anti-hopping law does not prevent any party from having a pact with a coalition. Hence, if GPS were to have a pact with PH to form a coalition government, the anti-hopping law would not prohibit such an arrangement.

Independent candidates

The anti-hopping law covers an independent MP, too: Article 49A(1)(b). If by chance, the independent candidate wins, he wins “otherwise than as a member of a political party”. The anti-hopping law prohibits him from joining a political party or coalition of parties as a member.

Conclusion

Like most Malaysians, I have waited a long time for the anti-hopping law. I have expected much from it. It is supposed to prevent defections of our MPs, preserve the people’s electoral mandate and prevent backdoor governments. I find myself uncomfortably wondering if it will. - FMT

Charles CJ Chow is an FMT reader and writes on law and other things that matter.

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