Anti-hopping law is there

Sarawak passed law to prevent crossovers after amending Article 17 of state constitution in November 1994

All the debate about the need for a law to prohibit party hopping in Sarawak is unnecessary because the state already has its own.

Political leaders in Peninsular Malaysia may be clamouring for anti-hop laws but such laws are no big deal to Sarawakians or Sabahans.

In November 1994 the State Legislative Assembly (DUN) amended the Constitution of Sarawak to add Clause 7 to Article 17 to allow the anti-hopping law to be passed.

Clause 7 (a) reads: “Any person who has voluntarily given an undertaking to the Speaker in writing that he will not resign his membership from the political party for which he stood or to which he belonged when he is elected to the DUN, shall, if he resigns from the political party after being elected, be disqualified in the interest of public integrity and morality from continuing to be a member of the DUN with effect from the date he resigned from the political party.”

And Clause 7 (b) reads: “For the avoidance of any doubt, it is hereby declared that this Clause shall not be taken as imposing restrictions on any person from becoming a member of any political party, permanently or otherwise.”

The state constitution differs from the Sabah and Kelantan model in that as far as Sarawak is concerned, there is yet a test case to determine or affirm whether Clause 7 is constitutional in accordance with Article 10 of the federal constitution.

Some legal commentators said they believed Article 17(7) of the state constitution may not be against Article 10 of the federal constitution as Article 10(2)(c) allows for restriction on freedom of association based on “public order or morality”.

A consequence of party-hopping implied in the state constitution is a by-election so that party-hoppers could get the mandate of his electorate one more time.

The law also applies to independent elected representatives because what matters most is their symbol, say, the ‘keys’ printed on the ballot papers.

Should they later jump to a political party immediately after the polls, they are deemed to have betrayed the trust of their loyal supporters and it is only right that the ‘frogs’ must face their electorate again.

The law would not apply to, say, party-hoppers from Barisan Nasional (BN) coalition who jumped from one party to another within the BN fold when during the election they had stood on the ‘dacing’ (scales) symbol, according to the commentators.

When asked for his opinion yesterday, former state attorney-general Datuk JC Fong said anti-hopping laws are not new in Malaysia.

He said such laws were first introduced in Sabah in the 1980s and Kelantan also amended its constitution, taking a cue from Sabah provisions to incorporate a new clause XXXIA.

Clause XXXIA reads: “(1) If any member of the Legislative Assembly who is member of a political party resigns or is expelled from, or for any reason whatsoever, ceases to be a member of the Legislative Assembly, his seat shall become vacant.

(2) For the purpose of clause (1), the Legislative Assembly shall determine whether a seat has become vacant or as to when a seat becomes vacant and the determination of the assembly shall be final and shall not be questioned in any court on any ground whatsoever.”

Fong pointed out that the court in the case of Abdul Karim vs Legislative Assembly of Sabah held the legislature in Sabah was constitutionally empowered to pass a law, by amending its constitution, to deprive an assemblyman of his seat if he switches party.

However in April 1992, the Supreme Court in Nordin bin Salleh v Dewan Undangan Negeri Kelantan, held that the law forcing an assemblyman who changed his party after his election to the legislature, to vacate his seat, was unconstitutional as it conflicts with the fundamental right provided under Article 10 (1) (c) of the federal constitution which guarantees all citizens freedom of association, including their right to dissociate with any association.

The court also held that this anti-hopping provision is not part of the essential provisions stipulated in the Eighth Schedule of the federal constitution which must be incor-porated in any state constitution.

The legal effect of anti-hopping law is that an elected legislator will be expelled from legislature if he switches political allegiance.

If he desires to return to the legislature under a new political party, he must do so via a by-election, Fong said.

Parliament has to change the constitution first before they can pass anti-hopping laws.
Fong said: “In the light of the Supreme Court case in Nordin bin Salleh, for any anti-hopping law to be valid or constitutional, there must be amendment to the federal constitution dealing with disqualification of membership of parliament or a state constitution dealing with disqualification of membership of a state legislature.”

“There must be an amendment to Article 10 (1) of the federal constitution, so as to deprive an elected MP or assemblyman his right of freedom of association to join any political party other than the political party under which banner he was elected,” he said.

In the light of the political composition of the present parliament or some of the state legislatures where the ruling party does not have a two-third majority needed to pass a constitutional amendment bill, it may require all party support before anti-hopping laws can be passed without infringing the federal constitution which is the supreme law, Fong pointed out.

The Sarawak amendment was passed after the decision of Nordin Salleh case but the disqualification aspect is based on the ground of “public integrity and morality”.

Parti Keadilan Rakyat (PKR) state liaison chief Dominique Ng begged to differ on the morality part.

The Padungan state assemblyman said: “Some may argue that curbing freedom of association as being immoral too.”

But Ng agreed that the law should be passed (nationwide) if it benefits everybody, including the government and opposition.

He said in principle, nobody would disagree to the law which already existed in Sarawak, but he did not know whether it had ever been applied.

“It (passing of the anti-hopping law at federal level) depends on the proposers — whether their intention is genuine or governed by political expediency. If it is the latter, then it’s not morally correct,” he said.

He claimed the proposers might want to pass such a law to prevent their elected representatives from defecting to the opposing side.

“If they are afraid to lose their YBs (elected representatives) or just want to protect their government from collapsing, then I do not think the law will be passed on the basis of high morality,” said Ng, who is a lawyer by profession.

R J Noel, another local lawyer who appeared to be all for freedom of association, gave a very thought-provoking statement on the matter.

He said: “The law cannot stop people from changing parties but it can stop them from taking advantage by changing parties.”

Lawyer George Lo agreed to the proposed enactment of the federal anti-hopping law despite the call by some quarters for freedom of association.

“Our anti-hopping law merely puts that principle on a legal footing. An elected representative does not own his seat as he holds it temporarily by the will of the voters in his constituency.
“If he wishes to change his allegiance from the opposition to the government or vice versa, he must, as a matter of principle, go back to his electorate for a fresh mandate. It is not a personal choice for him to make without reference to the people who put him there,” he said.

Sabah had wanted such a law after experiencing many incidences of party-hopping when Parti Bersatu Sabah (PBS) formed the Sabah government while United Sabah National Organisation (Usno) was in the opposition in the 1980s.

Party-hopping was seen as a destabilising force to the government administration, back then. But the law was later rescinded.

According to Sabah Progressive Party (SAPP) president Datuk Yong Teck Lee on Sunday, the anti-hopping law proposed by Minister in the Prime Minister’s Department Datuk Mohd Zaid Ibrahim should be passed, as it is long overdue.

“This state law was passed by the Sabah Legislative Assembly to protect the majority of the then PBS state government in the state assem-bly,” he was quoted by Bernama.
“Conveniently, the PBS govern-ment also chose to make this law effective only after PBS had accepted two defecting assemblymen from the then state opposition Usno.”

On the same premise and in order to maintain the moral high ground, BN leadership must now reject any opposition MPs who wished to join BN, Yong said.

He added that to accept opposition MPs into BN while at the same time condemning the opposition for enticing BN MPs did not make BN look good in the eyes of the people.
According to Yong, for parliament to pass a similar anti-hopping law, it must amend the federal constitution as well.

This was because Sabah’s law on anti-hopping was struck down as null and void in 1990 by the Federal Court for contravening Article 10 of the federal constitution provision on freedom of association, he pointed out.