THE newly elected president of the Malaysian Bar recently reiterated the need for the government to enact anti-hopping legislation, which he deems necessary to strengthen political stability and restore confidence in the country’s democratic process.

This is perhaps a view shared not just by the Malaysian Bar but many others perceived it as the immediate remedy to deter elected representatives from switching political allegiances.

The reality is that the anti-hopping law that some believe could right the many wrongs in Malaysia’s politics suffers from its supposed constitutionality. Anti-hopping law was found to be infringing the right of Malaysians to be freely associated with any entities.

In 1992, the Federal Court had effectively ruled that an anti-hopping provision in the Kelantan state constitution was unconstitutional and, thus, null and void because of the principles of freedom of association enshrined in the federal constitution. I suspect that any similar anti-hopping law, whether it was instituted by the state or federal governments, would be shot down by the judiciary.

And if we are considering any constitutional amendment to legalise anti-hopping laws in Malaysia, then a two-thirds majority is needed from the Parliament. That is, if there is two-thirds of MPs who have the appetite for an anti-hopping law to begin with.  

Yet the issues of constitutionality are not the main reason why I am ambivalent about anti-hopping laws in Malaysia. The anti-hopping laws are mainly about disciplining elected representatives, and while their intentions are noble, this may lead to political parties having total dominance over their MPs.

An anti-hopping law is only effective if it is empowered to sack or disqualify lawmakers if they quit their parties or rebel against the party. The second point is important because if an anti-hopping law could only act against those who voluntarily quit the parties, then the lawmakers could still cause political instability without switching allegiance by constantly rebelling against his party in Parliament.

For example, a half-baked anti-hopping law would be powerless to act against Mohd Azmin Ali supporting Muhyiddin Yassin’s premiership, so long as he does not voluntarily quit PKR. Therefore, an anti-hopping law must be rigid and seen to be rigid if it wishes to prevent political defections that Malaysians want to avoid.

However, the rigidity of an anti-hopping law also renders the elected representatives vulnerable to the political party’s dictate. In that sense, elected representatives are as good as political lackeys with no will of their own.

If a political party deems that its elected representative has acted against its will, he/she will be immediately sacked and deselected from the next general election. But are we so confident that the stance a political party takes is infallible?

If there is a sexual harassment bill in Parliament and a party whip has directed all its MPs to vote against it, then should a rebellious MP be punished for openly defying against its party by voting for the bill? 

We also must consider the fact that not every switching of allegiance is paved with bad intentions. I still remember vividly how Pakatan Harapan (PH) as the opposition at the time persuaded some MPs from Umno to rebel against Najib Razak for his 1MDB controversy by defecting to their side.

True enough, people like Muhyiddin and Mohd Shafie Apdal did defect and they were subsequently instrumental in Malaysia’s first change of government in 2018.

While I would stop short of saying their defections were paved with good intentions, it would be difficult to make a case on how PH could win during the last general election without Umno haemorrhaging support from the defection of Muhyiddin and Shafie Apdal. 

There is also a good reason why the UK parliamentary democracy, which our country largely inherited from, has not really entertained the idea of anti-hopping laws.

Britain describes the act of switching allegiance as “crossing-the-floor” or “ratting” in parliamentary terms and Winston Churchill once said: “…but the act of crossing the floor is one which requires serious consideration. I am well-informed on this matter, for I have accomplished that difficult process not only once but twice.”

Britain’s most famous prime minister was a “frog” twice in his political career, but Westminster was never interested in a rigid anti-hopping law. As I have mentioned above, anti-hopping law could potentially rob away the independence of MPs, which is crucial if we are truly adherents of parliamentary democracy.

Anti-hopping law would only make legislatures in parliament meaningless, given that MPs would not dare to act against their party.

To put this in context, Pasir Gudang MP Hassan Karim would have been penalised under such rigid anti-hopping laws for rebelling against its party president Anwar Ibrahim by voting against the second reading of the supply bill. Strangely, public opinion was on the side of Hassan Karim, but not the political party PKR.

One good argument against comparing with UK politics is that political hopping in UK is often burdened with principle while in Malaysia it is tainted by opportunism.

That is certainly true and I am just as disappointed by political defections of self-preservation in Malaysia as everyone else, but the remedy should be a holistic institutional reform, which includes equal funding for both opposition and government MPs, opposition being given a greater role in parliament and potentially a recall election whereby voters are able to deselect their elected representatives through a direct vote before their terms end.

This is, in my opinion, a more superior mechanism than the anti-hopping law where power is concentrated in the hands of political parties. I am wary that introducing anti-hopping laws might risk bringing new political problems to Malaysia’s fragile democracy. – March 28, 2021.

* Kenneth Cheng has always been interested in the interplay between human rights and government but more importantly he is a father of two cats, Tangyuan and Toufu. When he is not attending to his feline matters, he is most likely reading books about politics and human rights or playing video games. He is a firm believer in the dictum “power concedes nothing without a demand. It never did and it never will”.