‘Anti-Hopping’ law – Will it work?

According to this New Straits Times newspiece, newly appointed Minister in the Prime Minister’s Department in charge of Judicial Affairs, Senator Zaid Ibrahim, has proposed that Malaysia adopt an ‘anti-party hopping’ law. The purpose of such a law would be to prevent an assemblymen or Member of Parliament from changing political parties once they have been elected. This proposal, being reactionary (as is always the case in any Malaysian situation) is in response to the recent 2008 Malaysian Elections which saw the Opposition gaining a record number of seats at federal level, denying for the first time ever the ruling coalition’s two-thirds majority in parliament. Following this, prominant Opposition leader Anwar Ibrahim had claimed that certain members from the ruling coalition had expressed interest in joining the Opposition in enough numbers so as to gain a parliamentary majority and thus toppling the current government. Countenancing this, Zaid said a Bill would be drafted and tabled for this purpose.

 Much has been said in support of this proposal. Malaysia’s foremost legal authority, Professor Shad Saleem Faruqi, before the elections speaking at an Election law talk organised by the UiTM Law Society claimed that party hopping was a form of “political prostitution”. He has in the past few days also voiced support for such a law. The logic of such a law is simple. If you contested on say, Political Party A’s ticket, and after winning, suddenly switch allegiances to Political Party B, carrying the won seat with you, is it fair to the electoral who voted for you in the first place, assuming of course they vote for the party you’re from?

 However, such a stand could be held to contradict the notion of freedom of association, which is a right protected under Article 10 of the Federal Constitution of Malaysia. In the case of Dewan Undangan Negeri Kelantan v Nordin Salleh [1992] 1 MLJ 697, one Nordin Salleh, a member of the Kelantan State Legislative Assembly, from PAS, a party that was ruling in Kelantan at the time but was in Opposition at the Federal level, switched from that party to the BN, which was ruling at the Federal level. PAS which had earlier passed its own anti-hopping law sought to take action against Nordin, but failed for the Court ruling that such a law was void for violating freedom of association under Article 10. Similarly such a precedent esstopped PBS, a Sabah based political party, from taking action against assemblymen which crossed from that party over to the BN in the 1970-80s. It should be noted at this point that these developments were all favourable to the ruling coalition so of course, there was no question of allowing a law prohibiting such a practice then. Besides, didn’t it contravene a human right? Now that this situation puts BN in an adverse condition, what with its weakened support base following the 2008 elections, such a law is on the cards. This isn’t an attempt to be political – far from it. But this is simply fact. Still, the Opposition parties, such as Nik Aziz of PAS, support such a move. Oh, well.

 Professor Shad, opining in the New Straits Times recently, said there would be two ways in which such a law could be reconciled with the Federal Constitution’s protection of freedom of association. One, such a law could be enacted on grounds of morality, which is an exemption provided within Article 10 itself. The problem with this approach is that, given that PAS’ own anti-hopping law failed the Article 10 test despite the existance of this proviso, it is doubtful whether Zaid’s Bill would. Another would be by amending Article 10 to allow the law to function without this hiccup, as has been done in countries such as India. But amending the Constitution now would need the support of the Opposition parties, given that the ruling BN has been denied its usual two-thirds. Zaid expressed confidence that they would allow this, should it need be. The question is, would they?