KUALA LUMPUR, Jan 4 — Malaysia can make new laws to punish lawmakers who switch political parties after being elected, but this may not be the ideal or best solution to end the practice which is generally seen as morally wrong, constitutional lawyers have said.

Lawyers Lim Wei Jiet and Surendra Ananth highlighted that laws to stop the practice of party-hopping could also end up punishing those who genuinely change parties due to their conscience, instead of for personal gain.

Lim acknowledged that party-hopping betrays the people's mandate and is unethical if done for personal aggrandisement, but noted that it is also plausible to “argue that politicians should be able to exercise their right to act according to their conscience and the interests of voters who may deem that a particular party has betrayed its cause”.

“For example, if Muhyiddin Yassin quit Umno because of the 1MDB scandal before GE14, would it be fair to demand that he vacate his seat? Punitive anti-hopping laws may in fact force politicians to abandon their principles & allow cronyism to entrench,” he told Malay Mail when contacted.

While saying that anti-hopping laws are good in principle, Lim noted the difficulty in drawing the line on when it is acceptable to switch parties and also in conceptualising and enforcing such laws.

“If the Government or Parliament intends to enact such laws, there must be comprehensive studies beforehand. It is very difficult to pinpoint a model which has worked well,” he said.

“Countries like India and New Zealand with anti-hopping legislation have not seen positive improvements to parliamentary democracy.

“Many countries have good democracies without anti-hopping laws, primarily because they have mature politics and an informed electorate. In my view, that is the direction in which Malaysia should be heading,” he said.

Surendra said he agreed that party-hopping is wrong and undermines democracy, but argued that “enacting anti-hopping laws either by way of federal law or constitutional amendments might not be the best answer”.

He noted that proposals to have an MP lose his seat upon hopping to another party was based on two ideas that may not always apply: including that an MP who switches party has betrayed the voters’ mandate due to the assumption that he was voted in due to his party affiliation.

“However, this assumes that the MP was chosen on the basis of her/his party affiliation. A MP could have been chosen based on principles or other individual traits, regardless of the banner under which she/he ran,” he said.

Another presumption is that party-hopping is always bad, but Surendra highlighted an example where it might not be necessarily wrong, such as when the ruling party which an MP belongs to becomes corrupt and the MP then hops to the opposition to stand against such corruption as a matter of principle.

“It’s the uncertainty on when hopping is good or bad which makes enacting anti-hopping laws difficult. Is it even possible to list down exceptions as to when hopping would be permissible?

“It is clear what is happening now is bad with the defections from Umno. But what if they wanted to hop when BN was in power to stand up against a corrupt government?” he asked, referring to the current trend of MPs from once-ruling party Umno quitting to join the ruling Pakatan Harapan coalition.

Surendra said party-hopping should be viewed in light of larger democratic issues, with the aim to be to foster a “mature democracy” instead.

“Although there might be sound basis for legislative measures, I think the best way to address the issue is to strengthen democracy as a whole.

“This means strengthening the important institutions such as the police, judiciary, MACC, parliamentary select committees etc,” Surendra said.

The lawyers were asked to comment on the latest proposal for laws to counter party-hopping.

Critics of party-hopping say elected MPs who change political parties mid-term should resign and seek re-election due to their betrayal of the voters' trust.

But with the Federal Constitution's Article 48(6) punishing those who resign as MP with a five-year ban from contesting or becoming an MP, those who party hop usually keep their posts instead of quitting as MP.

PKR MP William Leong had suggested Article 48(6) be amended by replacing it with a provision for an MP's seat to be vacant if he resigns or is expelled from a political party which he contested under in the election, also explaining that it should cover those who leave a party to become independent.

Can it be done?

Lawyers told Malay Mail that Article 48(6) can be amended to counter party-hopping, but noted that changes to the Constitution would require a two-thirds majority vote in Parliament.

Lawyer K. Shanmuga agreed that it would be a good idea to amend Article 48(6) as part of the country's constitutional reforms, adding that Leong’s proposed wording for the amendment would be a “good starting point for discussion” and would need further study.

Shanmuga said an amendment to Article 48(6) should be based on the two principles that any MP should be able to resign his seat and offer himself for re-election; and that an MP once seek voters’ mandate again if he was elected from a political party and then changes party or if he is an independent MP that subsequently chooses a party.

Noting that Leong's proposed amendment would introduce the phrase “political party” into the Federal Constitution for the first time, Shanmuga said it would then raise further questions to be studied, such as whether political parties' selection of election candidates should be regulated constitutionally or self-regulated.

“For example, so much depends on who the political parties select as their candidates. It all happens behind closed doors. The general election is then effectively more a vote on the party leaders, rather than the individual candidate,” he said.

“The new Government (or perhaps Parliament) should initiate a 'Constitutional Convention' or a Royal Commission, to take feedback and study all the constitutional amendments that are required,” Shanmuga added.

Freedom of association

A common objection to the introduction of anti-party hopping laws in Malaysia is the concern that it would breach the right to freedom of association, which is protected under the Federal Constitution's Article 10 (1)(c) and which can only be restricted through federal laws in limited situations such as for national security, public order or morality.

Shanmuga believes that amending Article 48(6) to tackle party-hopping would not violate the right to freedom of association, saying: “If it's done by way of constitutional amendment, then it becomes part of the constitution. Thus free association rights will become subject to this obligation.”

While saying that enacting a parliamentary law to regulate party hopping may be possible and would be faster than changing the Federal Constitution, Shanmuga noted that it could also run into obstacles.

“It may also be challenged later as being against freedom of association even though Parliament can restrict laws to restrict freedom of association, they must be 'proportionate' and can be challenged in Court.

“A comprehensive review of the laws on elections, on political parties (including party funding), and on the relevant constitutional provisions would be better, rather than piecemeal ad hoc changes here and there,” he said.

Surendra similarly said that changing the Federal Constitution’s Article 48(6) to strip party-hopping MPs of their seats would not affect the right to freedom of association, pointing out that MPs are not entitled to their seats as a personal right.

“No one is stopping a MP from joining a different party. The consequence is that you lose your seat as a MP. That is not a personal right. It is a mandate conferred by the people,” he said.

Backdoor attempt to change the Constitution?

Surendra said introducing a federal law to disqualify MPs who switch parties could prove problematic, even though Parliament could justify the law’s restriction of the freedom of association on the grounds of morality.

Surendra said a federal anti-hopping law enacted by Parliament could end up being challenged in court, with the argument that Parliament has no power to pass the law when Article 48 already lists out when an MP would be disqualified.

“But it might be seen as a backdoor attempt to amend Article 48 of the Constitution by adding another ground for disqualification.

“One could argue that you must do it by way of constitutional amendment and not by federal law,” he said.

Lim argued that “any provision to prevent and punish party hopping must come through an amendment to Article 48 of the Federal Constitution”.

“Because Article 48 has provided a list of situations which appear to be exhaustive on when an MP can be disqualified.

“Hence, introducing any legislation which lists out other circumstances would arguably be ultra vires the Federal Constitution,” he said.