Anti-hopping law 

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The practice of defection is not unique to Malaysian politics. All political parties in the past and present have suffered defection at both state level and national level. When Prime Minister Datuk Seri Ismail Sabri Yaakob came into power, he had pledged to table a bill to curtail party hopping as one of the current administration's reform agendas. Adopting anti-party hopping law or anti-defection law has been a direct response for a majority of democracies to halt or discourage party hopping among Members of Parliaments (MPs) and prevent political instability. Penang is the only state to have its own anti-party hopping law, which came into force in 2012. Three issues have been identified if Malaysia were to introduce anti-defection law, (1) Constitutionality; (2) Risk of a rubber-stamp legislature; and (3) Trinity in the mandate. 

 

In fewer than ten months, the federal government and six state governments were brought down. At the national level, Tan Sri Mahiaddin Yassin, the 8th Prime Minister, had to resign when 14 UMNO MPs withdrew their support. Recently, in Malacca, Chief Minister Sulaiman Md Ali requested a dissolution of the legislative assembly after losing his confidence mandate when four state assemblymen revoked their support. At present, there is no prohibition for an MP to switch parties as they have been given the freedom to associate with any bodies or parties under Article 10 (1)(c) of the Federal Constitution (FC). In the case of Dewan Undangan Negeri Kelantan & Anor v. Nordin Salleh, the Supreme Court upheld the principle and decided that the state assemblymen had the right to associate or dissociate with any parties they deemed fit and proper. This shows that it is accepted in Malaysian courts for MPs to change allegiance, and importance has always been given to MPs to protect their freedom. Hence, amendments should be made to the constitution, or else this will nullify anti-party hopping laws. However, a two-thirds parliamentary majority is required to achieve this. 

 

The fundamental issue raised concerning the anti-party hopping law is whether it can prevent the collapse of a government? Wong's (2021) analysis on anti-defection law in Malaysia demonstrates that a standard anti-party hopping law may not stop the collapse of a government due to coalitional realignment, as parties may split and merge. Other than that, anti-party hopping law could compromise the freedom of elected parliamentarians to switch parties by placing excessive powers in the hands of the party leaders. Subsequently, this could produce a rubber-stamp legislative when the government commands a solid majority. 

 

As for the third issue, Wong (2021) believes a vote has three possible recipients: candidate, party, and coalition. This mismatch between anti-party hopping law and Malaysia's First-Past-The-Post (FPTP) electoral system. He proposed implementing anti-party hopping law under the Closed List Proportional Representation (CLPR) system. This is because the anti-hopping law was viewed as incompatible with the FPTP system as it would fail to address voters' anger and frustration over the collapse of pre-election coalition governments. On the other hand, Ting (2021) argues that the change of electoral system from FPTP to CPLR would be an 'overkill' because the change of an electoral system might cause unintended consequences as the saying goes, 'if it ain't broke, don't fix it'. 

 

To truly understand the rampant phenomenon of party-hopping, which led to the federal government's collapse, it is noteworthy to look at the underlying issues that cause an elected representative to switch parties. Weerasena (2021) summarised six reasons for examining the root issues of party hopping. They are as follows: policy or ideological positioning of a legislator, political party positioning, the ability of a political party to influence election outcomes, the ability of a legislator to influence election outcomes, legislator seeks a better deal for personal reasons, and legislator seeks better funding for the constituency.

 

The question is then, what are the repercussions faced by a defector in Malaysia? Are there any sanctions imposed? Currently, there are none. Article 48(6) of the FC and Section 6(5) of the Eighth Schedule provides that an MP or state assemblyman who resigns is barred from contesting as a member of the Dewan Rakyat for a term of five years effective from the day of his resignation. However, an MP can be penalised, but they shouldn't be disqualified. Wong (2021) recommended that Article 48(6) and Section 6(5) of the Eighth Schedule to the Federal Constitution and corresponding provisions in state constitutions in states other than Penang should be repealed. This is to guarantee the freedom for legislators to recontest even after their resignation. 

 

Nevertheless, political scientist Professor Wong Chin Huat believes that Recall Election Law (REL) would serve as an effective tool than anti-defection law to curb party hopping and restore political stability. REL is implemented in democracies like Peru, Japan, Poland, Columbia, Bolivia and is widely adopted in the United States. A recall election "allows the voters of a given unit to remove an elected official from office before his or her term is complete". REL has also been supported by scholars as it does not jeopardize the independence of representatives. The study reveals that a significant number of people distrust their representatives and would want representation to be enhanced. REL helps voters restore their sovereignty and allows them to hold elected representatives accountable. It is a fundamental right of a voter to vote, remove and replace their representatives and they should not have to wait till the next election to do so. Hence, this mechanism provides a continued opportunity for voters to exercise their democratic rights.  

 

It is also imperative to note that when voters shoulder the responsibility to vote for their representatives, they should be aware of their representative's policy choices. Does this mean it is fatal if voters lack relevant information when they vote? Bowler (2004) views that it is inevitable to avoid errors; therefore, it would be more sensible to provide voters with an effective tool to correct their errors of appreciation. REL is too subjected to shortcomings such as lack of information, manipulation of voters, costly campaigns, and irrelevant votes as the structure of REL is similar to elections. However, REL is not a panacea, but it gives people control over representatives. Interestingly, Ting (2021) posits that a better solution to remedy party hopping could be a combination of both anti-hopping law and recall election. She proposes that a clause could be added to exempt legislators who went against their party's defection from the coalition from the anti-hopping law and apply recall election to them. 

 

To sum up, if the government were to introduce an anti-hopping law, there would be legal obstacles as highlighted above. The issue of remedying party-hopping in Malaysia is rather complex as it involves constitutional amendments and other key reforms to ensure it is fully effective and successful. In such a climate, it is high time for our government to introduce a new mechanism to deter party hopping as experts pointed out that they should be implemented as soon as possible before the 15th General Election to prevent low voter turnout and protest vote.