THE amendment to article 10 of the Federal Constitution to legislate against party hopping was supposed to be tabled in Parliament last week, but was put on hold to allow for a consultation process led by a bipartisan parliamentary special select committee.

The tabling of the bill was part of the Memorandum of Understanding on Transformation and Political Stability between the government and Pakatan Harapan, signed on September 13.

In 2020 alone, there were changes to seven state and federal governments, all caused by lawmakers changing parties or parties realigning.

Since PH was ousted from power following the Sheraton move in 2020and replaced by Perikatan Nasional, governments have changed hands in Johor, Malacca, Perak (twice) and Kedah without going through elections.

In Sabah, 13 assemblymen suddenly dropped out of the state government, which had a supermajority, triggering an election.

At federal level, Perikatan Nasional lasted barely a year in power, to be replaced by an Umno-led government in September.

What is the proposed amendment to article 10?

The government had proposed to add a new clause 3(A) to extend the restriction on freedom of association to political party members.

However, lawmakers and civil society groups panned the amendment for its potential to undermine a lawmaker’s freedom of association due to its vague wording.

Clause 3(A) reads: “Notwithstanding paragraph (c) of clause (2) and clause (3), restrictions on the right to form association conferred by paragraph (c) of clause (1) relating to membership in a party of members of the House of Representatives and members of the state assembly may also be imposed by federal law.”

However, the new clause makes no mention of party hopping. The constitutional amendment was only meant to enable the subsequent crafting of a more substantive stand-alone bill to govern this practice.

Political scientist Wong Chin Huat said party hopping covers a wide range of actions: lawmakers’ voluntary resignation from party, expulsion from party, defying party instruction in legislative voting, party merger, deregistration and – for an independent lawmaker – joining a party.

Wong said such a law, when it comes into effect, will not stop party hopping. Instead it will only automatically vacate the seat of the party-hopper leading to a by-election.

Merely amending article 10, without a proper definition for party hopping could also potentially open up the doors for the provision to be challenged in court at a later date.

Article 48, which sets out seven conditions in which MPs can lose their seat, must also be amended alongside article 10 in order for the provision to become constitutional.

These conditions state that a lawmaker can lose his or her seat if he or she:

• is of unsound mind, bankrupt
• running his or her office for profit
• fails to report election expenses
• is convicted and fined in excess of RM2,000 or jailed more than one year
• holds dual citizenship
• commits election offences.

Party hopping must be added to article 48 for it to be read alongside article 10.

On top of which, section 18C of the Societies Act 1966 – which says that an individual expelled by a party cannot challenge the decision in court – must also be re-examined.

Parliamentary select committee

In lieu of tabling, the Dewan Rakyat unanimously decided to refer the formulation of the anti-party hopping law to a special select committee.

The select committee is comprised of Minister in the Prime Minister’s Department (Parliament and Law) Wan Junaidi Tuanku Jaafar, Minister of Home Affairs Hamzah Zainudin, Azalina Othman Said (Pengerang-BN), Mohamed Nazri Abdul Aziz (Padang Rengas-BN), Takiyuddin Hassan (Kota Baru-PN), Lukanisman Awang Sauni (Sibuti-GPS), Gobind Singh Deo (Puchong-PH), Mohamed Hanipa Maidin (Sepang-PH), Saifuddin Nasution Ismail (Kulim-Bandar Baharu-PH), Wilfred Madius Tangau (Tuaran-PH) and Darell Leiking (Penampang-Warisan).

Wong said the core issue that the committee has to consider was the wording, mechanism, coverage and the legal instruments of the bill.

“It has to define what it means to leave a party, expulsion by party, independents joining parties, lawmakers leaving or being expelled by a coalition as well as lawmakers who defy their party when it comes to voting,” Wong said.

In terms of mechanism, Wong said the committee could either recommend a traditional anti-party hopping law or a recall law.

The latter gives the power to the voters to call for an election and has already been proposed by Azalina.

“The committee must also decide if it wants the coverage to be limited to the Dewan Rakyat only or both houses of Parliament.

“It also needs to decide if the bill will be federally imposed or federally enabled, meaning the federal government will let a state decide what it wants to do.”

What next?

Maha Balakrishnan, a parliamentary consultant, said now that the bill is before the select committee, it can now call on individuals to come before it and look into policy issues.

“The committee can make a targeted call, a public call for written submissions, and issue summons to compel an appearance from anyone unwilling to do so. Interested parties can volunteer to participate in the consultation process,” she said.

“The recommendations will be debated or accepted based on a vote. We can assume that when the bill goes to the house, it should go through smoothly because the committee is made up of various MPs from different parties.”

As it stands now, the bill is expected to be tabled in Parliament in July. – April 18, 2022.