AMID Malaysia’s unstable political climate and incessant change of government over the past three years since the general election, Prime Minister Ismail Sabri Yaakob has finally called for multiple political reforms, including the tabling of the significantly disputed anti-party hopping bill, proposed to tackle party defection.

This comes after the Sheraton Move in 2020, where the then Pakatan Harapan administration was ousted by Perikatan Nasional.

Subsequent power struggles between members of the PN coalition led to the resignation of then prime minister Muhyiddin Yassin, and collapse of his government back in August.

A major contention often cited for this bill is to uphold the sanctity of the people’s mandate. This is to ensure that the social contract entered into between the ruler and the ruled is not rendered illusory.

According to Thomas Hobbes, an English philosopher dubbed as being one of the pioneers of modern political philosophy, the state of nature is that of war and the only way to end it is for the individual person to resign his liberty to the hands of the sovereign on the ground that his life will be protected by the sovereign power.

However, when that liberty is wrongfully used or abused by politicians to climb up the social ladder or facilitate personal gains, then should this absolute and unchecked power be taken away from them?

Another proponent of the social contract theory is John Locke, who insists that the ultimate power of choosing the legislature rests with the people and the law of nature remains as a principle of protection against arbitrary authority.

Locke further states that any sovereign that violates these terms of the social contract can be justifiably overthrown.

It is therefore trite that the theory of social contract that is embedded within the fabric of our political system and aided by our democratic institutions must not be undermined by the wants of selfish politicians.

Thus, the question that is to be answered here is: if the proposed anti-party hopping bill is futile or necessary in ensuring stability of the government and social order among the people.

It must be noted that the preposition of anti-party hopping laws is not new to Malaysia. Article XXXIA of part 1 of the Kelantan Constitution, which was struck down by the Federal Court in 1992, had prescribed that any member of the Kelantan assembly, who resigns or is expelled from his or her political party shall cease to be a member of the assembly and his or her seat shall be vacated.

The court, speaking through Abdul Hamid Omar ruled that this provision was unconstitutional as it was inconsistent with the right to freedom of association guaranteed by article 10(1)(a) of the Federal Constitution.

However, in the past three decades since this decision was made, there have been multiple dissenting opinions contending that anti-party hopping laws do not contravene the constitution.

The most prominent contender of this decision is the current Speaker of the Dewan Rakyat, Azhar Azizan Harun.

Azhar famously said in his article for the Malaysian Bar back in 2012 that anti-party hopping laws do not violate article 10(1)(c) because they do not prohibit elected representatives from joining any party of their choice, but rather merely prescribe the consequence of switching parties during their tenure.

It follows that the right to associate is still there but it is just that the seat will be vacated if the member chooses to join another party.

That said, there have also been calls to abandon the tabling of the bill as a whole. A prominent reason that is often advanced by those against the bill is that it will leave room for abuse for political party leaders to remove elected party members who do not hold the same view as the party, ultimately undermining the mandate of the people all the same.

Obliging an MP to toe party lines instead of deciding based on their conscience and calculated reasoning will only result in a rubber-stamp Parliament in addition to diminishing the importance of comprehensive and well thought out laws and policies for the country.

Thus, whether Malaysia’s proposed anti-party hopping bill is an act in futility will depend solely on the design and implementation of the bill.

This was the exact position taken by Shri G.C. Malhotra, the former secretary-general of the Indian Parliament, who stated that while India’s anti-defection law has “succeeded, to some extent, in checking the menace of defections in India’s body politic”, “comprehensive legislation” is still necessary to make the law more effective.

Hence, the drafters of the bill must remain prudent in implementing this suggestion in the interest of maintaining public and governmental stability. – December 1, 2021.

* Sivakami Veerappan and Nabeel Mahdi Althabhawi are researchers from the Faculty of Law at UKM.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.