THE Dewan Rakyat will sit on April 11 to table, debate and decide on the constitutional amendment bill that contains the limitation to the prime minister’s tenure and the anti-party hopping bill provision.

The former is less controversial. Malaysians don’t believe that our political system will train another Angela Merkel (led Germany for 16 years) but Dr Mahathir Mohamad. Thus, importing a concept from the presidential system – term limit – to check against the most powerful position in the government is well-accepted.

The main focus of the nation is the latter.

Since the “Sheraton move”, the discussion on how to deter or punish political defectors has never stop. The direct solutions are provided and clear: either the traditional anti-party hopping law as adopted in Penang where a defecting MP’s seat is vacated automatically, or the anti-party hopping recall law as proposed by Bersih and Pengerang MP Azalina Othman Said in her private member’s bill where a defector stays unless a recall procedure is initiated and passed, thus proving voters’ disapproval of his or her defection.

It is the national consensus, I think, that there must be some tools to stop the MPs’ defection, at least the unpopular ones, in order to restore the public confidence in the state political and electoral system. But, which option is the best for our nation? There is no consensus, in my observation.

What would the government propose?

Based on news reports, the proposal by Prime Minister Ismail Sabri Yaakob’s government is quite, if not almost, similar to Penang’s version that was inserted into its State Constitution in 2012.

The bill will insert a new article 49A with the title “Change of A Member’s Political Party”. The new clause defines when MPs will be regarded as hopping, including resignation or expulsion from their party and joining a party if they are elected as independent, when MPs will be exempted, including elected as the speaker and the deputies and dissolution of their party, and the automatic vacancy of the MPs’ seat if they hop but not exempted.

The bill will also amend article 10 and Eighth Schedule of the Federal Constitution. The former is believed to be needed to bypass the famous Supreme Court decision, Nordin Salleh’s case. The latter is aimed to impose the federal version of the traditional legislation to every state, on the name of “Federal guarantees the State Constitution”.

Traditional or anti-party hopping recall law?

The government proposal has been criticised by some legal practitioners (like New Sin Yew, read his Twitter post), politicians (like Pejuang’s Mukhriz Mahathir) and the public. It at least does not stop parties defected from its coalition, one of the reasons that caused the Pakatan Harapan (PH) government to fall. Besides, it is “party-centric” rather than “rakyat-centric”. Party leaders may abuse their power to remove intra-party rivals from Parliament by sacking them from party, and parties that hop from one coalition to another get off scot-free. Bersatu and Pejuang show a best example.

Some hesitate to accept the proposal of the recall law. The worries of it being abused, costly and less deterrence effect are the reasons. Of course, if one has studied Azalina’s bill, a limited-grounds recall mechanism with several threshold as safeguard will minimise, if not entirely exclude, the possibility of being abused.

The cost of having an anti-party hopping recall law is not necessarily higher than the traditional one. Once an MP defects, the traditional law will automatically trigger a by-election. In comparison, neither a recall nor a by-election will happen before enough voters express their disapproval. In other words, with 10 defections, 10 by-elections will need to be held under the traditional law, while under the recall legislation, only those that pass the recalls will see by-elections.

So, which option costs more?

Of course, a longer time is needed under the recall law to sack political frogs because an additional process – the recall mechanism – is required. It depends on how the mechanism is designed. According to Azalina’s proposal, 38 days extra. However, a slightly longer period doesn’t mean less deterrence. Would political frogs be bolder to defect if they can stay on for 38 more days and get paid one more month’s salary?

The detailed argument for the “for” and “against” both bills can be found in many news, opinions and reports, and you may want to start with Azalina’s bill.

Not only are the above grounds against the recall law questionable. The traditional bill proposed by the government is also “imperfect”. Implementation of either remedy is, in fact, having an experiment to test which is best for our democracy.

A simple, fast but with room to punish the party dissenters under the traditional bill, or the “rakyat-centric” recall bill, which may look complicated? Both have their own fans, but no one has a definite answer unless you have a crystal ball to look into.

If one is aware that it is just a matter of choice with no 100% correct answer, then he or she needs to demand the government to answer, why impose the federal proposal on every state through the amendment in the Eighth Schedule?

The effect of the Eighth Schedule amendment

The Eighth Schedule of the Federal Constitution contains the “essential provisions” that a State Constitution should have. If the State Constitution does not contain the essential provisions, or provisions substantially to the same effect, or contains provisions inconsistent with the essential provisions, it goes against the Federal Constitution and Parliament has the power to insert such essential provisions into, or remove the inconsistent provisions from, the State Constitution. All the aforementioned are explained in article 71(4) of the Federal Constitution.

So, if the federal proposal is inserted into Eighth Schedule through the constitutional amendment bill, all states will have to amend their constitutions to introduce a replica of the federal traditional law. If they do not do so, Parliament can impose on them by law. If the state prefers other variants of the traditional law like New Zealand’s model, or the recall law, they cannot implement it because of the risk of inconsistency with the federal proposal, which is included in the Eighth Schedule.

So, again. If we know the federal government proposal is imperfect, why impose it on all states, sacrificing the chance to experiment with better solutions at the state level?

Some may argue that without inserting clauses in Eighth Schedule, the state can’t impose any sanction against the defecting assemblyman. They cited the decision of the then Supreme Court in Nordin Salleh’s case that:

“... such restriction (in Article XXXIA of Kelantan State Constitution, in substance a traditional anti-party hopping law)… clearly does not fall within any of the grounds for disqualification specified under s. 6(1) of Part 1 to the Eighth Schedule to the Federal Constitution.”

First, with respect, the Supreme Court only restates the fact or position that a traditional law is not included in the Eighth Schedule at that time. What is the effect? It seems to be left unexplained in Nordin Salleh’s case.

Second, in practice, silence in the Eighth Schedule does not mean the State Constitution cannot have it. Absence from a legislative meeting as a ground to vacate the state seat, identical to that applied on federal MPs as provided in article 52 of the Federal Constitution, is not provided in the Eighth Schedule but commonly seen in the State Constitution. Is it then unconstitutional simply because it is not covered by the Eighth Schedule?

The real obstacle is not silence in the Eighth Schedule, but the phrase “Parliament may by law” in article 10(2) of the Federal Constitution. What the federal government should do is amend article 10 to empower the state legislature to enact any law as a sanction against wanton defection, despite affecting the frogs’ freedom of association.

Just to note, freedom under article 10 of the Federal Constitution is not unrestricted but can be imposed if falls within the constitutional grounds such as national security, public order and morality.

Mirroring Article 10(3), the amendment to article 10 of the Federal Constitution may be done by inserting a new clause as follows:

“(3A) Restrictions on the right to form associations conferred by paragraph (c) of Clause (1) relating to elected representatives’ right to associate or disassociate with any political party may also be imposed by the State Constitutions.”

The benefits of having an amendment to article 10 rather than the Eighth Schedule are as follows. First, the nation can have a chance to experiment with both solutions, time will help the voters to answer which is the best. Second, it upholds the spirit of federalism, as advocated by de facto law minister Wan Junaidi Tuanku Jaafar himself when pushing for the Malaysia Agreement 1963 constitutional amendment. The state governments will answer to their voters about what they think is the best for their respective state, and it is not uncommon for the states to have divided opinions.

Don’t worry about the states not implementing any measures against party-hopping. Considering the current political atmosphere, it would be political suicide for a state government not to do anything against party hopping. And if the federal traditional legislation is the best solution, eventually all will adopt the federal proposal.

However, besides undermining the spirit of federalism, a key disadvantage of amending Eighth Schedule is that the onus is now on the federal government and PH to prove that their traditional law is the “perfect” or best solution!

Sacrificing the chance to experiment with different options at the state level is also unwise. We always cite India as an example to implement the traditional variant, but seldom look at the weakness of this legislation as discussed and introspected in India, including its failure to stop the political crisis in Karnataka legislative assembly happen in 2019 (right before the 2020 “Sheraton move”! Check it out if you are interested), and the call to have recall mechanism in India. Other countries are revising and trying to move forward, but we are copying our commonwealth partner’s homework done in 1985 and limiting ourselves to just that solution?

It is understandable that both the government and opposition want the bill to be passed to secure the continuance of the memorandum of understanding (MOU). Ismail wants to avoid becoming the shortest-term prime minister while PH needs the bill passed before the next general election happens to regain voters’ confidence and willingness to vote.

However, it should not be a reason to force this “imperfect” bill on all states. Unless they want to bear the political responsibility and burden to prove that this bill is the best or perfect one.

Finally, it is worth remembering that all state governments are not a party to this MOU, which is a deal between Ismail’s government and PH. Why should they decide for the states? – April 6, 2022.

* Wo Chang Xi is a law-trained research associate at Sunway’s Jeffrey Sachs Centre on Sustainable Development.

* 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.