Introduction
In an attempt to end the endemic of frogging during the season of and especially after election, an anti-hopping bill - the Constitution (Amendment) (No. 3) Bill 2022 ("Bill") - was introduced and tabled for first reading on 11.4.2022. The Bill was tabled by the Minister of the Prime Minister's Department (Parliament and Law), Datuk Seri Dr Wan Junaidi Tuanku Jaafar, who is also Santubong Member of Parliament ("MP"), in Parliament to amend the Federal Constitution.
Background
The frogging reached its height back in 2020 when a number of political frogs engineered the ultimate downfall of the preservation of integrity in the democratic election process and caused the dramatic end of the 22 month-old Pakatan Harapan government. The incident has since been dubbed the infamous "Sheraton Move". The effect of the "Sheraton Move" saw 39 parliamentarians switching political allegiances and 3 prime ministers having been appointed since the 14th General Election ("GE14"). This inevitably left voters feeling utterly betrayed and losing the high hopes they once had for GE14.
The Passing of the Act
After the reading of the Bill on 28.7.2022, Datuk Seri Dr Wan Junaidi informed the House of Representatives ("HOR") that the amendment to the Federal Constitution was agreed without any further amendment. The Bill received support from more than two-thirds of Members of Parliament ("MP"), with 209 out of 220 MP voted in favour of the Bill. Subsequently, 52 senators unanimously approved the Bill, with 7 senators absent when the voting took place. The Bill was gazetted on 6.9.2022 as an Act of Parliament i.e Constitution Amendment (No.3) Act 2022 ("Act") and it was enforced on 5.10.2022.
The Amendments to the Federal Constitution
(A) Article 10 - Insertion of new clause 3A
Article 10(1)(c) of the Federal Constitution provides every citizen with the right to form associations.
The new clause 3A seeks to restrict the rights to freedom of association in relation to a member of the HOR and Legislative Assembly of any state ("SLA") under Article 10(1)(c) of the Federal Constitution with the restrictions imposed by Article 49A (anti-hopping provision for member of HOR) and section 7A of the Eighth Schedule (anti-hopping provision for member of SLA) respectively.
This is to dispel any concern as to whether the anti-hopping provisions will be found inconsistent with the rights to freedom of association enshrined under the Federal Constitution which has given rise to the recent Federal Court decision on the amendment of Penang State Constitution and the previous Supreme Court decision on the amendment of Kelantan State Constitution (both cases will be dealt with in detail below). Now, the restriction to the right to freedom of association in relation to a member of HOR or SLA is expressly provided by Parliament in the Federal Constitution.
(B) Article 48 - deletion of clause (6)
Clause 6 of Article 48 of the Federal Constitution which disqualifies a member of HOR who resigns from being a member of the HOR for a period of five years is removed.
Such deletion enables some flexibiliy by allowing any member of the HOR who resigns to seek for re-election or contest in by-election at any time after he resigns or vacates his seat pursuant to Article 49A. It is then down to the decision of the people to decide whether they still want this member to be their representative in the HOR.
(C) New Article 49A - Anti-Hopping Provision
- Circumstances in which a member of HOR will cease to be a member of the HOR
The new Article 49A seeks to introduce 3 circumstances in which a member of the HOR will lose his or her seat as the member of the HOR. They are:-
Circumstances 1 & 2
Having elected to the HOR as a member of a political party, he or she:
- Resigns as a member of that political party; or
- Ceases to be a member of the political party.
Circumstance 3
Having been elected to the HOR otherwise than as a member of a political party, he or she joins a political party as a member.
Note:
The word "member of a political party" applies to a member of the HOR who is not a member of any political party that forms a coalition of political party but is a member of that coalition.
The 3rd circumstances also covers an independent candidate who, having been elected to the HOR, joins a political party.
b. Exceptions
The new Article 49A also provides exceptions to when a member of the HOR will not lose their seat as a member of the HOR. They are:-
- When there is a dissolution or cancellation of the registration of his or her political party; or
- His or her resignation from the membership of his or her political party upon election as a Speaker; or
- The expulsion of his or her membership of the political party.
c. Illustrations
Scenario 1
Member of Party A who is a member of the HOR shall not cease to be a member of the HOR if Party A leaves its coalition of political parties which it originally belongs whether or not Party A joins another coalition of parties or forms a new coalition of parties.
Scenario 2
Political Party A merges with Political Party B to form Political Party C where by such merger both Political Party A and Political Party B are either dissolved or their registrations cancelled. The members of Political Party A and B shall not cease to be a member of the HOR.
Scenario 3
Political Party A is dissolved or its registration is cancelled and the members of Political Party A becomes members of Political Party B. Members of Political Party A shall not cease to be members of the HOR.
Scenario 4
Member of Political Party A, a member of the HOR who is expelled from Political Party A whether he joins another political party or forms a new political party shall not cease to be a member of the HOR.
d. Establishing Casual Vacancy
The new Article 49A also provides for the procedure in which a "casual vacancy" in the HOR is filled when a member of the HOR ceases to be a member by virtue of Article 49A.
Upon receiving a written notice from a member of the HOR that there is a "casual vacancy" in the HOR under Article 49A, the Speaker shall establish that there is a casual vacancy and notify the Election Commission within 21 days from the date of receiving the written notice. The casual vacancy shall then be filled by way of election within 60 days the Election Commission receives the notice from the Speaker.
For example, if the Speaker receives a notification from a member of the HOR on 2.2.2022 that another member of the HOR resigns as a member of his political party on 1.1.2022, the Speaker must establish whether there is a casual vacancy and notify the Election Commission of such casual vacancy on or before 23.2.2022. If the Election Comissions receives the written notification of casual vacancy from the Speaker on 20.2.2022, the Election Commission shall hold an election to fill the casual vacancy on or before 21.4.2022.
(D) Amendment to Article 160
This amendment seeks to introduce the definition of "political party" into Article 160 of the Federal Constitution. In essence, any society which by its object or rule (whether such object or rule is the principal or ancillary object or rule of the society) provides for the society to participate via its candidates in elections to the HOR or SLA is a political party.
Further, any society, nothwithstanding anything in its object or rule, so long as it carries on any activity or pursues any objective which involves in its participation, through its candidates, in elections to the HOR or SLA, is a political party.
(E) Amendment to the Eighth Schedule
Part I of the Eighth Schedule to the Federal Constitution sets out the "essential provisions" that must be adopted, or substantially adopted in State Constitutions. The amendments are made to the Eighth Schedule of the Federal Constitution to reflect the contents of the new Article 49A at the SLA level.
There is also an inclusion of clause 1 to the Act which provides that the amendments made to the Eighth Schedule of the Federal Constitution will only come into operation after obtaining the consent of the Sultan or the Yang di-Pertua Negeri. This is to provide autonomy to the state to choose whether to implement the law or not to extend the law into the state.
(a) Removal of subsection 5 of section 6
Subsection 5 of section 6 of the Eighth Schedule of the Federal Constitution which disqualifies a member of SLA who resigns from being a member of the SLA of the state for a period of five years is removed.
As in the case for a member of HOR by virtue of deletion of Article 48(6) of the Federal Constitution, such deletion enables some flexibility by allowing any member of the SLA who resigns to seek re-election at any time after he resigns his membership as a member of SLA. It is then down to the decision of the people to decide whether they still want this member to be their representative in the SLA.
(b) Insertion of new section 7A
A new section 7A is inserted to the Eight Schedule which is the pari materia to the new Article 49A save that it applies to members of SLA instead of members of HOR.
As in Article 49A, the new section 7A introduces 3 circumstances where a member of the SLA will lose his or her seat as the member of the SLA:-
Circumstances 1 & 2
Having elected to the SLA as a member of a political party, he or she
(i) Resigns as a member of that political party; or
(ii) Ceases to be a member of the political party.
Circumstance 3
Having been elected to the SLA otherwise than a member of a political party, he or she joins a political party as a member.
Note:
The word "member of a political party" applies to a member of the SLA who is not a member of any political party that forms a coalition of political party but is a member of that coalition.
The 3rd circumstances also covers an independent candidate who, having been elected to the SLA, joins a political party.
The circumstances in which a member of the SLA shall not cease to be a member of the SLA are the same as that provided in Article 49A, i.e.
- When there is a dissolution or cancellation of the registration of the member's political party; or
- The member's resignation from the membership of his or her political party upon election as a Speaker; or
- The expulsion of the member's membership of the political party.
The same requirement for the Speaker to establish the existence of casual vacancy and notify the Election Commission within 21 days of being notified in writing of the causal vacancy by a member of the Legislative Assembly applies, so is the requirement for the Election Commission to hold an election within 60 days from the date of receiving the notification from the Speaker to fill the vacancy.
Our View
(A) Advantages of the Act
The Act makes it compulsory for a MP and/or State Assemblyman who "party-hops" to vacate his seat. This means that the seat of such MP and/or State Assemblyman can no longer be carried over to the MP's and/or State Assemblyman's new party, and effectively imposes a penalty on the MP involved.
(B) Deficiencies of the Act
Firstly, the exclusion of involuntary expulsion could result in attempts by a disgruntled MP to be a disruptive influence within his political party so as to force his expulsion, thereby avoiding a by-election being triggered.
Secondly, the amendments to the Federal Constitution do not deal with the defection or withdrawal of an entire party from a coalition which contested together during the elections. While the law seeks to prevent individual MP from abandoning their political party without consequences, it does not prevent an entire party of political frogs from switching allegiance by hopping from one coalition to another. In short, party-frogging is still possible! Given the current scenario where a coalition government is the order of the day, defection or withdrawal by a coalition party may still cause the collapse of the government.
Thirdly, the MP might merely become a team member who is legally required to follow the party's directions and leadership, regardless of whether these offend his or her principles, or otherwise risk expulsion and the loss of his or her seat. This could also weaken the connection between the voters and their elected representative, since the legislator would now be beholden to act as his or her party commands.
Fourthly, one might also question why an independent MP has to vacate his/her seat if he or she joined a party, yet an MP who was sacked by his party is not required to do so.
Fifthly, in establishing that there is such a casual vacancy in the House, the Speaker holds the ultimate power to decide by gathering facts and evidence. The problem that may arise is if the Speaker is not an impartial one but to follow what the government of the day commands.
Sixthly, the Act used two different words: "resigns" and "ceases" in Article 49A and/or section 7A. This necessarily means that ceasing to be a member carries a different meaning than resigning. So, this begs the question, and the Act is not clear in that, in what circumstances would a MP cease to be a member of a political party since "ceases" does not cover "resigns"?
Lastly, the Act fails to address ways to curb corruption arising from political funding which is notoriously rampant and is seen as the main drive for the political frogs to hop. However, it is worth nothing that as at the date of writing this article, a proposed new law on political donations and financing of political parties is expected to be tabled at the next Dewan Rakyat sitting in order to address such a concern.
Federal Court Case - Is Anti-Hopping Provision in State Constitution Against Rights to Freedom of Association?
On 3.3.2022, the Federal Court with a panel of 7 members chaired by the Chief Justice Tengku Maimum Tuan Mat found that the Article 14A of the Penang State Constitution is not void for being inconsistent with Article 10(c) of the Federal Constitution. The Federal Court overruled the then Supreme Court's decision in the case of Nordin Salleh and Wan Najib Wan Mohamed where the Kelantan state government enactment over anti-party-hopping law was declared null and void for being inconsistent with the rights to freedom of association enshrined in Article 10(c) of the Federal Constitution.
To put the Federal Court decision in context, Article 14A of the Penang State Constitution states that a state assemblyman should vacate his or her seat if he or she resigns, ceases to be a politician or being expelled by his or her political party.
The Federal Court held that it is the power of the Penang SLA to make the law. Further, an elected representative's ability to change a political party for whatever reason does not take on the character of the personal right of a citizen to form associations as envisioned by Article 10(1)(c) of the Federal Constitution. The Federal Court also held that once an elected representative has succeeded in an electoral contest on the ticket that he sought, he or she has exercised his/her rights of association by contesting on that ticket. Once he or she is in the HOR or SLA, he or she no longer has the personal right to associate on account of the fact that he had been given the mandate by the electorate that entrusted him or her to that position.
In any event, as mentioned above, Article 10(1)(c) of the Federal Constitution has now been amended by the Act to include an additional clause 3A to impose restrictions to the freedom of association in relation to a member of the HOR and/or SLA.
The After Effect
As explained above, the Act provides the autonomy to states to decide whether to implement the anti-hopping law. This means that they are not compelled to adopt the Act in their respective states after the Act's enforcement. However, 5 states, namely, Sabah, Selangor, Penang, Negeri Sembilan and Sarawak have indicated their intentions to amend their State Constitutions to bring the anti-hopping law into effect. This is viewed to be a positive step towards a stronger democracy and fair play. Interestingly, Sarawak already has a provision against party-hopping in its State Constitution but was not implemented because it was said to go against the Federal Constitution. With the amendment to the Federal Constitution, Sarawak can now reconsider to enforce what it already has.
Further, It would also be interesting to see how the current Penang State Constitution which provides that a member of the Penang SLA from a political party will lose his or her seat if he or she is "expelled" from that political party (and any other State's Constitution with similar provision) would be amended in view of the Act. There seems to be an inconsistency between the Penang State Constitution (and any other State Constitution with a similar provision) and the Act in that expulsion is treated as an exception allowing the frogs to hop under the Act, but is treated as one of the circumstances where the hopping frogs will lose their seat under the Penang State Constitution (and any other State Constitution with similar provision).
Lastly, it is also noteworthy that the Act will not apply to members of the Dewan Negara, as currently, senators are elected by state assemblies or through political appointment by the federal government and do not stand for public election.
References
- Constitution (Amendment) (No.3) Act 222
- The Edge Judgments Report, 'Federal Court Rules that Article 14A of the Penang State Constitution (popularly known as 'anti-hopping' law) does not contravene the fundamental right of citizens to freedom of association guaranteed under Federal Constitution' (8 August 2022)
- The Centre To Combat Corruption and Cronyism, 'My Govt Tracker: Party-Hopping' (my government reform tracker) https://c4center.org/mygovtreformtracker/party-hopping/ accessed 29 August 2022
- Shazni Ong, 'Anti-Party-Hopping Bill passed by Dewan Rakyat with more than two-thirds majority' (the edge markets, 28 July 2022) https://www.theedgemarkets.com/article/antipartyhopping-bill-passed-dewan-rakyat-more-twothirds-majority accessed 29 August 2022
- Dr Wilson Tay Tze Vern, 'An 'Anti-Hopping' Law for Malaysia - is it beneficial' 27 April 2022, Dayak Daily https://dayakdaily.com/an-anti-hopping-law-for-malaysia-is-it-beneficial/ accessed on 29 August 2022
Originally published October 2022.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
