Malaysia's New Anti-Hopping Law to be put to test in upcoming GE15

INTRODUCTION

A new milestone was reached when a Bill that restricts MPs from switching political parties was enforced effective Wednesday, October 5, 2022.

The Bill passed was aimed to prevent defections amongst MPs which is a key condition of the confidence and supply agreement (CSA) signed by Prime Minister Ismail Sabri Yaakob's administration and the opposition party Pakatan Harapan in September 2021. Prime Minister Ismail Sabri Yaakob further added that the "new Law" will play a big role in upkeeping the nation's political stability.^[i]

Lawmakers in July 2022 collectively passed the Bill, after more than two years after the defection that led to the collapse of the PH Federal Government in 2020 which resulted in a period of political instability known as the "2020 Sheraton Move". The main issue with defection is the balance of power in Governments, such as in cases of Terengganu (1961) and Perak (2018) where several defections of lawmakers toppled or installed state governments.^[ii]

Under this new Law, a by-election will be triggered in the event an MP were to "jump ship" or if an MP were to quit. MPs elected as independents will also lose their seats if they join other political parties.

BACKGROUND OF THE BILL

The Bill introduces anti-party hopping provisions into our Federal Constitution (FC). This simply means that the provisions can only be amended by amending the FC – a process requiring the affirmative vote of not less than two-thirds majority of both Houses of Parliament. Hence, it will be more difficult for the anti-party hopping provisions to be amended than if they were included in an Act of Parliament for which a simple majority of both Houses will suffice.

The Bill was initially proposed in April, but the vote was deferred after MPs voiced concerns over some of its wordings. The Bill was then further refined by the Parliamentary Special Select Committee which then took over 2 months. As it sought a broad buy-in from all the parties in Malaysia's fragmented political landscape, exceptions were made.

Under the Bill, MPs will lose their seats if they choose to jump to another party. Exceptions will be given to MPs who are sacked by their party or if their party is dissolved or deregistered.

An MP who is elected as the House of Representative Speaker will also be exempted from the law. For instance, an en bloc defection by a party as that of BERSATU from the PH government has inevitably led to its collapse - would also not be covered under this new Law.^[iii]

The law will not apply to members of the Senate, as currently, senators are elected by state assemblies or through political appointment by the federal government and do not stand for public election.

ABSTRACT OF THE ANTI-HOPPING LAW

The gist of the Anti-Hopping Law is instilled in the new Section 7A and Article 49A Part 1 of the Eight Schedule of the Federal Constitution (FC) as follows:

Section 7A of the Eighth Schedule

Part 1 of the Eighth Schedule to the Federal Constitution lays the 'fundamental provisions' that must be adopted, or substantially adopted, in State Constitutions.

The provisions of the new section 7A of Part I of the Eighth Schedule, which are substantially similar to Article 49A, are summarised below.

Subsection (1) of section 7A provides that a member of a State Legislative Assembly shall cease to be a member of that Legislative Assembly and his seat will be vacant if that member:

1. having been elected to the State Assembly as a member of a political party, resigns as, or ceases to be, a member of that political party.

2. having been elected to the State Assembly otherwise than as a member of a political party joins a political party as a member.

Subsection (2) of section 7A sets out three situations whereby the membership of a State Assemblyman in a State Assembly shall not cease by reason only of:

1. the dissolution or cancellation of the registration of the State Assemblyman's political party;

2. the State Assemblyman's resignation from membership of his political party upon election as a Speaker; or

3. the expulsion of the State Assemblyman from membership of his political party.^[iv]

Article 49A

Clause 1 of Article 49A provides that a member of the House of Representative shall cease to be a member of that House and his seat shall become vacant if the MP:

1. having been elected to the House of Representative as a member of a political party, resigns as, or ceases to be, a member of that political party; or

2. having been elected to the House of Representative otherwise than as a member of a political party (i.e., an independent candidate), joins a political party as a member.

Clause 2 of Article 49A lays out three exceptions whereby the membership of an MP in the House of Representative shall not cease by reason only of:

1. the dissolution or cancellation of the registration of the MP's political party.

2. the MP's resignation from membership of his political party upon election as a Speaker.

3. the expulsion of the MP from membership of his political party.^[v]

In contrasting Article 49A and Section 7A, Article 49A requires the Speaker to establish whether a casual vacancy exists in relation to an MP seat in the House of Representative within 21 days of being notified in writing by any MP that a casual vacancy had indeed taken place and to notify the Election Commission accordingly.

If the Speaker establishes that a casual vacancy has taken place, the Election Commission is required to hold an election to fill the vacancy within a period of 60 days from the receipt of notification from the Speaker.

Section 7A on the other hand requires the Speaker of a State Assembly to establish whether a casual vacancy had taken place within 21 days of being notified in writing by any State Assemblyman and to notify the Election Commission appropriately. If the Speaker establishes the occurrence of casual vacancy, the Election Commission is to hold an election to fill that vacancy within the period of 60 days from the receipt of the notification from the Speaker.

Following the aim of putting a stop to the party-hopping "fiasco" which has plagued Malaysian politics in recent years, as ironic as it is, the efficacy of this new Law can be questioned.

Article 49A of the Eight Schedule of the FC imposes a restriction to prevent an MP from discharging himself from the party he was elected under. The MP will lose his seats if he were to resign from the party or if he were to quit from being a member of the party.

However, if the scenario is that he is expelled from the party, he then would be able to retain his seats as per Article 49A(2)(c) of the Eight Schedule of the FC. This is the loophole in question that could be exploited.^[vi]

This loophole can be triggered when an MP were to be meticulously disobedient constantly breaching Code of Conducts to engineer his expulsion from the party as this would not disqualify him from his Parliamentary seats. He is allowed by Law to hop onto another party. This Anti-Hopping Law does not prevent this scenario from taking place.

As a result, recently DAP and Amanah filed an application to the Registrar of Societies to amend their party's constitution so that their MP who does not comply with the code of conduct of the party would cease as a member of the party by default, without being sacked. A similar move was seen with Barisan Nasional (BN) in which every BN Coalition members took oaths to resign voluntarily as MP if they were expelled from their parties. Supposedly, the way this ruling would work is if the party were to issue a decree and it is disobeyed, you would no longer be a member, followed by the loss of seats as per Article 49A(1)(a)(ii).

Going into the context of a party leaving a coalition, some voiced out that while the anti-hopping law aims at preventing MPs from jumping ships, it does not include MPs whose political parties leave a coalition to join another. It however does cover an independent MP as per Article 49A(1)(b). The Anti-Hopping Law restricts him from joining a political party or coalition of parties as a member.^[vii]

This loophole could render the entire Anti-Hopping Law ineffective; it is questionable as to why the lawmakers did not envisage such a flaw within the stages of drafting, debating, and passing of this Act.

CONCLUSION

All in all, the Anti Hopping Law seeks to provide a political culture which respects the electoral outcomes. It can be concluded and justified that the Anti Hopping Law with its current limitations is a product of compromise between all the various political parties. More however needs to be done in further understanding the practical functions of the Anti-Hopping Law in fulfilling its role in the unpredictable nature of Malaysian politics.

The Law is stated as at 09 November 2022.

Written By: Malik Sohail Ahmad

For further clarification, please contact us at 03-2171 1484 or at mail@azamlaw.com.