ONE big obstacle in introducing an anti-party hopping law (APHL) is the ruling by the Supreme Court of Malaysia in 1992, which interpreted the constitution and declared crossing over to another political party as freedom of association.

Thus, in order to introduce the APHL, the first order of business is for Parliament to approve a constitutional amendment to bypass the 1992 court ruling.

But even this is not straightforward, as the amendment could be challenged in the Federal Court by any party concerned seeking legal remedy.

In 2015, retired Federal Court judge Gopal Sri Ram, was reported to have said there could be no APHL in Malaysia because of the 1992 landmark judicial pronouncement.

“Even an amendment to the constitution will fail because freedoms under Part 2 of the national charter form part of the basic framework,” said Sri Ram.

Parliament could not enact laws, including the constitution that touched on the basic structure like freedom of association, he added.

One way to ensure the right to switch parties is there but won’t result in political instability is to add a constitutional provision whereby the seat of an MP shall become vacant if the MP ceases to be a member of, or is expelled or resigns from the political party for which the MP stood in the election.

A by-election will be called for the seat in which the former MP can contest under the ticket of his or her new party.

It is as if the former MP is asking for endorsement for his move to switch parties from the electorate, which had earlier voted him in, and it becomes up to the electorate to endorse him or not through their votes during the by-election.

As for an Independent MP, the same applies when his status as an independent legislator changes when he joins any political party.

This has to be added as a separate clause in the new provision to remove the ambiguity that it doesn’t apply to independent MPs simply because expressions like “ceases to be a member of, or is expelled or resigns from the political party” does not make sense to them, as they do not have a political party to begin with.

With this separate clause, it means independent MPs have to vacate their seats because switching parties for them is a change in status from one who has no party to one with membership of a party.

Just to see how useful this provision is in mitigating political instability, let’s assume that this provision was in place during the Sheraton Move. 

The Pakatan government wouldn’t have been brought down because it wouldn’t be easy for a new coalition government to be formed with the support of more than 111 MPs.

The Perikatan Nasional (PN) government was formed because of its ability to get the support of 116 MPs because 11 MPs had switched parties from PKR to Bersatu. 

Without this defection, PN wouldn’t have been able to get the support of 116 MPs, only 105 MPs, which was not enough to form a government. This would mean the 11 PKR MPs would have had to vacate their seat and 11 by-elections would have had to be called.

To take the example of the Sheraton Move, when Bersatu pulled out from PH government, all Bersatu MPs were still members of Bersatu before and after the pull-out. So at the point of pulling out, there was no party hopping. 

Another novel and creative idea to stem party switching is the proposal for a party-list based general election suggested by the Padang Rengas MP Mohamed Nazri Abdul Aziz back in 2020.

Under this scheme, it is the party that is the candidate in a GE, not an individual member of the party as currently practised. At the ballot box, voters will tick the party symbol and logo for the party they want to represent them in a constituency.

The winner will be based on the first-past-the post (FPTP) system in which the party with the most votes will win the seat. And the party winning the most number of seats will form the government.

At the conclusion of the GE, the winning party of a constituency will then appoint a member of the party to be the MP of the constituency.

If midway through his term, the appointed MP jumps ship to another party, he cannot carry along his seat to his new party. This is because that seat does not belong to him but the winning party that has appointed him to be the MP.

Moreover, when an MP switches party, the seat does not have to be vacated to make way for a by-election. Instead, the winning party will appoint another individual member of the party as the new MP for the seat.

The beauty about this proposal is not only the freedom to switch parties is allowed but there won’t be political instability because the winning party still holds on to their seats. Taxpayers’ monies are substantially saved from holding a by-election.

Assuming this proposal was in place during the Sheraton Move, there would have been no need to organise the 11 by-elections for the 11 PKR MPs who switched allegiance to a new party under the earlier proposal of amending the tenure of the term of office of MPs.

One can just imagine the hefty savings gained from not organising these costly by-elections.

In this brilliant scheme, the issue of the mandate of the rakyat given during a GE being stolen becomes irrelevant because the mandate will be with the winning party until the next GE.
  
According to Mohamed Nazri, a trained lawyer who was also a former de facto law minister, the amendment to the Election Commission Act 1957 to enforce a party-list system, in which voters would elect parties rather than individuals, only needs a simple majority to be approved.

This was unlike the two-thirds majority necessary to amend the Federal Constitution.

Speaking in Parliament on November 22 last year, Mohamed Nazri, conceded that his proposal would not cover independent lawmakers, but said that was the risk voters must take in the unlikely event they opted to back one.

He further noted that independent lawmakers were not beholden to support any party even now. – April 3, 2022.

Jamari Mohtar reads the Malaysian Insight.

* 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.