The futility of an anti-hopping law

A Malay proverb once stated, “Galas habis senggulung tandas, laman dihitung rugi jua” (meaning: embarking on a futile effort). That is the portrayal of enacting an anti-hopping law. The push is futile since it fails to address the main issue: the collapse of governments.

Politicians opine that an anti-hopping law is the antidote for political and economic precariousness. It is supposed to prevent the fall of governments due to political crossovers among MPs and assemblymen. In reality, an anti-hopping law is not the solution.

Party-hopping is a political phenomenon which only indicates the symptom, not the illness. If the proposed law is meant to address the symptom instead of the illness, then it is destined to fail. The real issue is the loss of majority support in legislative bodies (i.e. in Dewan Rakyat or state assemblies).

In Malaysia, there are two ways of legally establishing (and unseating) a government. Firstly, via elections. Secondly, via the appointment of the prime minister under Article 43 (2)(a) of the Federal Constitution without going through an election. However, the first method depends on the second method, i.e. commanding the majority support of members of the Dewan Rakyat.

Article 43 (2)(a) consists of two parts.

Firstly, it provides that the Yang di-Pertuan Agong shall appoint the prime minister from among the MPs in the Dewan Rakyat. Secondly, it states that the Agong shall appoint a prime minister who in his opinion commands the majority support among MPs. This part is the “thorn in the flesh”. Without the majority support of MPs, the aspiring MP cannot be legally appointed as prime minister. As a result, his political coalition cannot form the Cabinet.

Upon close examination, the second part of Article 43 (2)(a) does not refer to any political party and/or political coalition. This leads to the inference that the majority support from MPs is an “individual” decision, not a “party-led” decision. Impliedly, by virtue of Article 43 (2)(a), the constitution allows political crossovers.

What proponents fail to realise is that an anti-hopping law cannot prevent the loss of majority support in two different scenarios, i.e. political defections and non-political defections. Such a phenomenon occurred in 2020 whereby a change of government at both the federal level and in several states such as Kedah, Melaka, Johor and Perak took place.

For instance, the appointment of the Pagoh MP as the eighth prime minister by the Agong was a combination of these two scenarios. There were MPs who had defected from their political parties to support the Pagoh MP such as the Gombak MP, Ampang MP and Indera Mahkota MP. At the same time, no Umno MPs defected to make up the total majority support of MPs towards the Pagoh MP. Consequently, the Agong appointed him as prime minister upon the fulfilment of Article 43 (2)(a).

Non-political defections also occurred in the collapse of the Perak government in 2020 under the leadership of the Chenderiang assemblyman. He was defeated in a motion for a vote of confidence in the Perak assembly. The defeat was a collective effort from the majority of representatives in Perak (including those from Umno and DAP) without a single assemblyman from DAP defecting.

And recently, the eighth prime minister had to resign after 14 Umno MPs withdrew their support. Did any of those Umno MPs defect? No. Did the federal government collapse? Yes.

The above examples prove that governments can/will collapse, even without political crossovers. Needless to say, any government in Malaysia can be toppled without the need for party-hopping. If such is the case, what is the need to legislate an anti-hopping law? All that is needed is for MPs to withdraw their majority support.

Some would argue that the formation of governments via political crossovers is undemocratic since it circumvents elections. The answer is simple. There are situations in which the stakeholders cannot afford to wait until the current mandate expires and an election takes place (e.g. during a political crisis). Covid-19, for instance, renders elections unsafe. As such, Article 43 (2)(a) provides the solution without the need for the Agong to dissolve the Parliament and hold an election. It is still democratic because it is allowed by the law.

Further, prior to the passing of an anti-hopping law, Article 43 (2)(a) has to be amended with 2/3 majority in the Parliament. In fact, other relevant articles such as 10 (1)(c) (freedom of association) and 48 (1) (disqualification for membership of MPs) will need to be amended as well. Amending Article 48 (1) for example would introduce a new clause that disqualifies politicians of their status as MPs for party-hopping. If all or any of these constitutional amendments are approved, politicians will be affected as they will be rooted out from the centre of political power. Is this not contrary to the ends of politicking?

Admittedly, political crossovers have gradually eroded public confidence in democratic institutions such as election. However, what is the solution for politicians once their parties deviate from the political struggle? Is it plausible for these politicians to remain as “political prisoners” in their party? Is it justifiable to demand the vacancy of their respective seats once they cross the floor? Such a notion is against the decision of the then-Supreme Court (now Federal Court) in Dewan Undangan Negeri Kelantan vs Nordin bin Salleh which underscored that the freedom of association in Article 10 (1)(c) entails the right to defect and to form a new association.

Parliament’s priority should be directed to legislating a political funding law instead of an anti-hopping law. While the latter is an exercise in futility, the former will prevent the recurrence of infamous bribery cases such as 1MDB. It will ensure that the flow of money funding political activities is legitimate. This will prevent politicians from being implicated in money laundering. In fact, the passing of a political funding law will ensure that cases related to “political donations” will be adjudicated transparently in court. Party-hopping does not cause governments to collapse. Bribery among politicians does.

Political stability can only be achieved via political maturity. Politicians ought to think carefully about the implication of an anti-hopping law. Its success in other countries is not a guarantee that it will be doable in Malaysia. Lest they regret, as per another Malay proverb, “Takutkan tuma dibuangkan kain, takutkan hantu terpeluk bangkai” (meaning: for the fear of smaller misfortune, a bigger setback befalls instead).

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.