How to fix our anti-hopping law?

 

After four Bersatu MPs expressed their support for Prime Minister Anwar Ibrahim while staying in the opposition party, and the fifth one openly offered his support for a price of RM30 million in constituency allocation, many claim that our anti-hopping law is flawed or has failed.

Such views are perhaps ignorant of the fact that generically the law has an inherent dilemma in deciding its strictness, and the new phenomenon of “defection without leaving party” is but a manifestation of this dilemma.

The real solution has to be beyond the law: strengthening parties, instead of causing by-election.

How strict or how lenient?

The “loopholes” we face today stem from the definition of “change of a [parliamentarian]’s political party” in the newly inserted Article 49A, which excludes two matters: (a) expulsion by the party; (b) legislative voting not in compliance of party’s instruction.

Due to the first “loophole”, an MP elected as a party member will only lose his/her seat if he “resigns” from the party or “ceases to be a member”. Ironically, this means that if any of the five Bersatu MPs is sacked, he would be free to join another party without having lost his seat and to contest in a by-election.

This is why Bersatu only dares to suspend their party membership, much like why Umno only suspended Semberong MP Hishamuddin Hussein’s party membership.

Sembrong MP Hishammuddin Hussein

As a result of the second “loophole”, even if these MPs switch sides in legislative voting - and now, as permitted by the speaker, even move their seats to the government’s bench - they still will not automatically lose their party membership, unless the opposite is prescribed by their party’s constitution.

This is what DAP, Amanah and after the 15th general election, Umno, did to close these loopholes. These parties’ constitution now has made defying party instruction in legislative voting an offence that causes those deviant MPs to automatically “cease to be members” - like failure to pay party membership due - and be punishable by the anti-hopping law.

Can’t Bersatu take the same path? Before we examine its effectiveness for Bersatu, allow me to say something unpleasant for many who hate party-hopping. While these two “loopholes” make the anti-hopping law toothless in the case of Bersatu five, they prevent Parliament from becoming a rubber stamp more than what it already is sometimes.

Why? If a leader can sack parliamentarians from Parliament by first sacking them from the party, this could make party leadership very strong and ordinary MPs their puppets. under India’s anti-hopping law, lawmakers voting not according to party lines - regardless of the matter - are indeed treated as defection.

If we go down the Indian way, then Parliament becomes formally the executive’s rubber stamp. Any government that holds a simple majority can bulldozer through every bill or every motion. All the parliamentary debates would be just for show if all things follow party lines strictly.

Is there a middle path if we want to both prevent government collapse caused by lawmakers’ defection and preserve some autonomy for parliamentarians? Yes, we may explicitly define ‘change of a parliamentarian’s party membership’ to include ‘defiance of party instructions on confidence and supply matters’. (‘Supply’ here refers to votes on supply bills, ie, budgets)

If our national anti-hopping law has been too soft, then DAP, Amanah and PAS ‘party anti-hopping laws’ have been too hard, as they do not differentiate between ‘confidence and supply’ and other matters.

Can amending party constitution help Bersatu?

Can Bersatu stop this new “in-party defection” phenomenon by amending its party constitution as DAP, Amanah and Bersatu did?

Upon careful examination, my reading is negative. Even a strong anti-hopping law that penalises deviant legislative voting may only work for government parties, but not opposition parties.

Here is why. If the opposition wants to bring down a government, government parties can use anti-hopping laws by way of the party constitution to cause the defectors to lose their seats and face by-elections.

In other words, within 21 days (the maximum period the speaker has to inform the Election Commission of seat vacancies for defectors), the new government will not have the defectors’ seats to make up a majority (at least not until the defectors win the by-elections).

So, aided by the party constitution, the anti-hopping law is actually effective in stopping another Sheraton Move.

However, it may not protect the opposition parties from defection induced by the government camp.

If Bersatu first amends its party constitution, then requests division votes (belah bahagi, in which every parliamentarian’s stand will be recorded) on government bills or motions, and you are one of the Bersatu five, would you vote alongside the government, to automatically lose party membership and face by-elections?

Most likely, the Bersatu turncoats would just vote along the party line to keep their seats. Until the opposition has the number to overthrow the government, all these division votes are politically insignificant.

If I were the government, I would rather keep these turncoats embedded in the opposition bench than win pointless battles in division votes with a greater majority.

In fact, the government may continue to recruit more turncoats but quietly now, as they would only show their hand in critical moments. The inability to first stop ‘de facto defection’ and next detect clandestine defectors can only demoralise opposition parties like Bersatu.

Treat the root causes, not symptoms

We should pause and ask: Why most Western democracies (New Zealand is a rare exception) do not have anti-hopping laws?

Party-hopping does happen in the West but they normally happen only because of ideological reasons. If a Conservative MP jumps to British Labour, s/he is likely to trade most of her/his old Conservative supporters for a new base amongst Labour voters. Like divorce and re-marriage, such party-hopping is not harmful or shameful, but maybe even honourable.

So, the problem we should tackle is not party-hopping, or what forms it takes, but its root causes. In Malaysia, party-hopping is more often than not caused by corruption or personal ambition, as lawmakers crave ministerial or GLC jobs, lucrative projects or patronage for constituents.

We cannot eliminate political corruption (the root cause) by stopping party-hopping (the symptom) by threatening by-election (the deterrence).

The Achille’s heel of the anti-hopping law is this: by-elections may not be a deterrence to party-hoppers. If their voters see party-hopping as a means to get more patronage, the defectors can easily be re-elected.

This in fact happened in the 2020 Sabah state election, akin to state-wide by-elections as it was called after the state government was brought down by defection. Of the 17 defectors who returned to their constituencies to seek re-election, 11 won, 10 of whom had jumped to the new federal government’s camp.

What are the solutions then if we really want to end party hopping? We can do at least three things.

First, end the systematic discrimination against opposition lawmakers, most tellingly, in constituency allocation. This has been used by defectors all the while, and the reason why Pakatan Harapan demanded equal constituency allocation for its MPs in the memorandum of understanding with Ismail Sabri Yaakob.

It is time for Perikatan Nasional to think equally strategically. All those who can’t wait to condemn the anti-hopping law, please support the call for Equitable Constituency Development Fund laws for Parliament and all 13 state assemblies.

Second, strengthen parties, not by strengthening party leaders’ control on lawmakers, but by strengthening ‘product differentiation’ between parties, by encouraging policy competition in strengthened Parliament and state assemblies.

If voters can see the difference between parties, and are therefore willing to penalise turncoats who sell their mandate, most turncoat wannabees would think twice.

Third, allow voters to directly vote for a party, namely, introducing Closed List Proportional Representation seats alongside the existent First-Past-the-Post seats, for which we vote for individual candidates. For party-list seats, the seats belong to the party.

If a party-list MP jumps ship, the seat would be vacated and immediately filled up by the next available candidate on the same list. No by-election is needed and voters don’t get to endorse party-hopping with their votes. - Mkini

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WONG CHIN HUAT is a professor and deputy head (strategy) of the Asia headquarters of the UN Sustainable Development Solutions Network at Sunway University, Malaysia. He declares no conflict of interest.

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