THE Coalition for Clean and Fair Elections (Bersih) strongly opposes the proposed amendment to article 10, which touches on our fundamental liberty to freedom of association, that is to be tabled tomorrow. While it is undeniable that there is a need to legislate against rampant party-hopping, we cannot enact bad laws with the potential to undermine fundamental liberties and dismantle constitutional protection of healthy inter-party competition and necessary check and balances in a democracy.

And while anti-party hopping laws should be enacted before the next general election, it does not and should not be enacted in a rush, simply to satisfy the political bargains between today’s political parties. The consequences of their self-interests today will reverberate for generations to come. 

Bersih proposes for the committee on the memorandum of understanding and the cabinet to settle for a limited version of an Anti-Party Hopping Law, which excludes expulsion from party from being defined as party-hopping, as such satisfies the objection of some parties or MPs. 

Our position is as below:

1. The proposed amendment to article 10,

“(3A) Notwithstanding paragraph (c) of Clause (2) and Clause (3), restrictions on the right to form association conferred by paragraph (c) of lause (1) relating to membership in a party of members of the House of Representatives and members of the State Legislative Assembly may also be imposed by federal law”

That has been strongly criticised by legal experts and other members of civil society as well as MPs, should be reworded as:

Notwithstanding Clause (2), restrictions on the right to form association, conferred by paragraph (c) of Clause (1), of members of House of Representatives relating to change of their political party affiliation after election, may be imposed by this Constitution.

2. In the next parliamentary special meeting, a new article 49A should be passed with a definition of party-hopping that excludes expulsion such that it includes the following:

“Subject to the provisions of this article, a member of the House of Representatives shall vacate his seat if–

(a) having been elected as a candidate of a political party, he resigns or ceases for any reason whatsoever except expulsion, to be a member of that party during the relevant term of his election; or

(b) having been elected otherwise than as a candidate of a political party, he joins a political party during the relevant term of his election.”

No parliamentary Act that would only complicate the matter is needed.

3. The proposed addition of articles 10(3A) and 49A is sufficient to bypass, where a federal anti-party hopping law is concerned, the Supreme Court’s 1992 verdict on Nordin Salleh, which ruled out only state-level anti-party hopping laws on grounds of restricting freedom of association in article 10.

By excluding expulsion from party from the definition of party-hopping, it would indeed weaken the power of the said law, as MPs or state assemblymen who have effectively defected by acting against their parties, would not resign but wait to be sacked in order to keep their seats in the House or state assemblies. While this is not ideal, this compromise is inevitable when society and the political leadership want a traditional form of the law but cannot agree on its coverage.

Pursuing the existing path, marked by disputes and delays, not just on article 10 but also the separate parliamentary act in the next step, we may never see a legal mechanism to deal with the menace of party-hopping before the 15th general election. Such a scenario is wholly unacceptable to the public who has been disappointed and betrayed by the spectacle of collapsing governments brought about by party-hopping in the past two years. 

Settling for this limited form of the law can satisfy the public’s demand to see some restrictions on party-hopping before GE15 without causing long-term harms to constitutional rights. When the weaknesses of this law emerge, Parliament can seek other remedies such as recall. For this reason, Parliament must not impose any one-size-fits-all solution on the states by amending the eighth schedule. Instead, states committed to political stability and accountability should take initiative and be empowered to explore and enact their own anti-party hopping instruments, as states in Malaysia (1960s-1990s), India and Canada do even before any federal initiative. 

To avoid blind spots in drafting, we urge the government and the MOU Steering Committee to promise transparency in the process, that drafts and engagements are made public with reasonable time given for public discussion and feedback. Let this be a new normal in law formulation, where members of the public are informed and can express their preference, for lawmakers to consider and represent. – April 10, 2022.

* Bersih is a coalition of civil society groups seeking to reform the electoral system in Malaysia.

* 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.