No excuse
’Feasible and doable’ to have anti-party hopping law, says constitutional expert
PETALING JAYA: The provision on freedom of association in the Federal Constitution should not be used as an excuse for not introducing a law to stop elected representatives from party hopping.
Constitutional experts claim that such a law was feasible and doable, and that introducing it was necessary to ensure political and administrative stability.
Law expert Prof Datuk Salleh Buang said Malaysia should emulate Singapore in vacating seats of MPs who cease to be a member of the political party they stood for in elections.
He said this way, it allows elected representatives to change parties – thereby respecting their right to association and being in line with the Constitution – although they would lose their seats automatically.
“It’s not like we are banning lawmakers from switching parties at all, so it is not unconstitutional. But obviously, if they decide to jump, then the seat will be vacated.
“That should be the way forward. This way, we are only discouraging party hopping. Personally, I would say it is definitely doable. We really need to review our law,” he told the Sun yesterday.
Salleh was asked to comment on de facto Law Minister Datuk Takiyuddin Hassan’s statement recently that the government would need to study the need for an anti-hopping law as freedom of association for every citizen is still guaranteed under the Constitution.
Previously, Pakatan Harapan’s (PH) then deputy law minister Mohamed Hanipa Maidin had also said the government had no plan to introduce such a law as it would go against a Supreme Court decision in 1992 that such legislation was ultra vires the Constitution.
He was referring to a case in Kelantan which saw two by-elections triggered after two assemblymen from Semangat 46 – Nordin Salleh and Wan Mohamed Najib Wan Mohamed – defected to Umno, consequently losing their seats, as per the state enactment.
After they both lost the subsequent byelections, the Supreme Court upheld a High Court verdict that the Kelantan anti-hopping law was against the Constitution and ordered the reinstatement of Nordin and
Wan Najib to their original seats.
However, Salleh said the court decision should not be absolute, arguing that under
Article 10(2)(a) of the
Constitution, Parliament may impose restrictions as it deems necessary or expedient in the interest of the security, public order or morality of the federation.
He said as such, the Dewan Rakyat has the prerogative to restrict party hopping, noting that defections – particularly those that lead to the toppling of a government – could be deemed contrary to public order and have a negative impact on national security.
Universiti Teknologi Malaysia Law and Constitution research fellow Dr Muhammad Fathi Yusof said it was pertinent that anti-hopping laws strike a balance between the freedom of association and the mandate given by the people.
He said one way to address the issue of defections was to require all candidates to sign a declaration before nomination on the implications if they hop.
This should include them vacating their seats, and even fined, similar in nature to the policy practised by PKR.
Additionally, he said the electoral system should also be amended to give greater emphasis on political parties.
He noted that at present, election provisions only recognise that in the event of an election, the ones being voted in are the candidates and not the parties, despite this not being the sentiment of the rakyat most of the time.
By amending the law to give more emphasis on parties, Fathi said it would allow lawmakers to be penalised “for betraying the people’s mandate” as they would be deemed to have been voted in along party lines.