‘Party hopping can create a negative impression among foreign investors.  Anti-hopping law is needed to preserve long-term political and economic  stability.’ Can and will the law be as effective as it was anticipated to be?  

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Following the political chaos in Malaysia, the calls for an anti-hopping law to be enacted have been louder than ever. Nonetheless, despite the recognition of adverse consequences arising from party-hopping, the effectiveness and possible complications of the anti-hopping law need to be thoroughly considered.

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Definition of 'party-hopping' and the form of anti-hopping law 

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First, it is necessary to ask what constitutes 'party-hopping' and secondly, in what form should the anti-hopping law take. 

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What exactly constitutes 'party-hopping'? This question is the first hurdle in drafting an effective anti-hopping law. Does it include only the over-simplistic notion of crossing from one party to another? What if an MP quits the party he contested under and becomes independent? Bearing in mind the local political context, what if MP crossed, say, from PKR to DAP, where both are component parties of a political coalition; is this party-hopping? Is PPBM quitting the Pakatan Harapan during the Sheraton move a form of party-hopping? Even though it concerns the quitting of a party as a whole from the coalition, rather than an individual MP party-hopping. There is no satisfactory answer provided by advocates of anti-hopping law.  

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Without a precise definition of the act of party-hopping, no effective anti-hopping law could be made. We should be mindful that such laws could also be subjected to potential abuse. A party may expel a politician, turning them into an independent, causing a by-election to occur when there is dissatisfaction with rebellion MPs that voted against a party's will in the Parliament, all in the name of anti-hopping. 

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Regarding the form of anti-hopping law, one suggestion is to vacate the seat of the MP. Undoubtedly, anti-hopping law in this form would prevent party-hopping; nonetheless, it would strip away MPs' ability to voice their dissatisfaction towards the party. This form of law is also vulnerable to abuse, depending on the definition of party-hopping, as its nature is of strict liability. 

 

Another suggestion is a recall election followed by a by-election. Prima facie, this might be viable as it provides the voters with the power to voice out their dissatisfaction through 'voting out' a representative and at the same time, unlike the former suggestion, which is of strict nature, provides the power to retain the representative if they wished the representative to continue its term. Nonetheless,  this option would attract unfavorable consequences. Firstly, too many elections could occur in a short period, as every successful recall election would follow by a by-election. Consequently, hefty spending on the conduct of elections, as the procedure involves not just one election but two, should the recall election succeed. Further, it is submitted that, compared to the former suggestion, a recall election is unnecessary and excessive, as an automatic vacancy of seat followed by a by-election could achieve the same intended effect, but with only one election. Nonetheless, it is unclear as to what form of recall election procedure the government would adopt as of now. 

There is also a suggestion of party-list proportional representation. However, this would fundamentally change Malaysia's electoral system and parliamentary system, straying away from the Westminster model that we are familiar with. Wholesale legislative reform is possibly required.

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 Anti-hopping law for long-term stability?

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Although there is some truth in the common perception that party-hopping caused political and economic instability. It is submitted that the instabilities are not caused by the mere phenomena of party-hopping but rather by immature politics. It is not uncommon for MPs to 'cross the floor', even in developed democracies such as the UK and US. The well-known Winston Churchill himself has crossed the floor twice, shifting from Conservative to Liberal, and switched back. 

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It is doubtful if any form of anti-hopping law could effectively curb party-hopping due to the difficulty in pinpointing what amounts to party-hopping. And, the reality is that collapse of a government could still be caused without any party-hopping. A mechanism such as a vote of No confidence can equally bring down the government without anyone crossing the party. The fall of Muhyiddin's government closely illustrates this; it does not involve party-hopping or even a no-confidence vote but a mere retraction of support from the UMNO MPs. If MPs can still collapse the government without party-hopping, what is the point of an anti-hopping law?  

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In any democracy which follows the Westminster model, even those with anti-hopping law, the forming of government is never about 'which is the majority party in the house' but rather 'who commands the confidence of majority'. The common public's fundamental misunderstanding is that the majority party forms the government. This has effectively muddied the waters. 

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Discussions regarding the anti-hopping law are also based on the unfounded preconceived belief that voters voted merely based on party preferences rather than an individual representative, without any empirical evidence supporting this belief. An example that shows that voters do not always vote based on party preferences is the election in Gua Musang during 1990-1995, whereby Tengku Razaleigh, the incumbent UMNO MP, after quitting UMNO, still won for two terms under party Semangat 46. 

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Any form of anti-hopping law might be unconstitutional. In Dewan Undangan Negeri Kelantan v Nordin Bin Salleh, it has been decided by the Supreme Court that Art.XXXIA of Kelantan Constitution, a state law which restricts party-hopping, is unconstitutional, violating the fundamental right of freedom of association guaranteed by Art.10(1)(c) of the Federal Constitution, as it restricts a citizen's right to form, to join, not to join or resign from an association. It was recognised that legislators' right to leave one political party to join another is an integral part of the fundamental right of association. 

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Anthony Loke has pointed out that one possibility of party-hopping is the lack of funding for one's constituency when he falls to become opposition MP, which is the political reality in Malaysia. If so, then the answer to party-hopping is not an anti-hopping law but a fair distribution of funds law. If there is a possibility of underlying corruption or bargain for personal gains, then perhaps the law should prohibit MPs who crossed to hold ministerial/ GLC posts or impose mandatory financial checks on such MPs. 

 

In conclusion, although the sentiment of anti-hopping is well appreciated, an anti-hopping law might not be the best solution, and the government should not rush into drafting such laws before enough studies are conducted.