Constitution

This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever.

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If we mention the phrase, “party hoppers”, you might be confused but if we mention the word, “katak”, you would immediately associate it with Malaysian politics. The ‘frogs’ here refer to Members of Parliaments (MPs) or state legislative assemblymen who defect or quit their party after an election and subsequently either pledge themselves to another party. Party hopping has serious repercussions as it may deprive people from having the party they voted for in power.

“Oh no. They found us.”

A recent case of this can be seen when a total of 36 members from UMNO Sabah announced their departure and allegiance to Parti Warisan Sabah, the current Sabah State government, and the recently elected Pakatan Harapan Federal Government.

Our Prime Minister has made it clear that those who defected are welcome to join Pakatan Harapan provided they support the coalition and have clean records. But hang on...aren’t there any laws to prevent party hopping?

Some states used to have anti-defection law

Image from Astro Awani

You might be aware that our country has its own constitution which is known as the Federal Constitution of Malaysia. But do you know that every state in Malaysia also has its own constitution? Yes, they are known as State Constitutions and they serve as the highest law in their respective state.

In fact, Article 71 of the Federal Constitution recognises and guarantees the State Constitutions. However, it also provides that any provision in the State Constitution must comply with the Federal Constitution. In other words, the Federal Constitution is more superior than the State Constitution. The Federal Constitution is the supreme law in Malaysia.

We have found examples of two States which have passed State Constitutions that prevents party hopping. The first is Penang’s State Consitution which was proposed to be amended back in 2012 to include anti-hopping provisions. Clause 1 of the Bill provides that a state legislative assemblyman who has been elected as a candidate of a particular political party must vacate their seat if they quit the party, or is expelled from the party.

Article XXXIA of the Kelantan Constitution (a copy of it is unfortunately not available online) also provides a similar provision where if any state assemblyman resigns or is expelled from their political party, they shall not continue to be a member of the State Legislative Assembly and they have to give up their seat. In short, this means that a re-election is required:

“If any member of the Legislative Assembly who is a member of a political party resigns or is expelled from, or for any reasons whatsoever ceases to be a member of such political party, he shall cease to be a member of the Legislative and his seat shall become vacant.”

With all these laws in place, why does party hopping still happen then? Some of you might notice that we mentioned that the states used to have these laws...

They don’t anymore because they are unconstitutional

In the case of Dewan Undangan Negeri Kelantan v Nordin Salleh [1992] 1 MLJ 697, the courts held that the anti-defection law under Article XXXIA of the Kelantan Constitution is unconstitutional because it contravened the freedom of association provided under Article 10(1)(c) of the Federal Constitution.

Let’s take a look at what Article 10(1)(c) says:

“Subject to Clauses (2), (3) and (4)...all citizens have the right to form associations.”

While Article 10 provides Malaysians with the freedom to join or leave any association, this right, like all other rights, is not absolute. Article 10(2) and (3) empowers Parliament to pass restrictions on the freedom of association if it is for the interest of security, public order, morality, labour or education.

Some of you may be confused now. If the Federal Constitution allows restrictions on the freedom of association, why did the courts rule that the anti-hopping provisions are unconstitutional? This is because even though the freedom of association can be restricted, this can only be done by the Parliament, and not the State Legislative Assembly.

In short, only the Federal Parliament can pass the anti-hopping law by way of amending the Federal Constitution. The State Legislative Assembly has no power to pass such law.

Where does this leave us?

While we may have mixed feelings about party hopping, the law is pretty clear here. Only Parliament can enact anti-hopping laws, which can restrict our right to freedom of association.

An ex-Federal Court judge, Datuk Seri Gopal Sri Ram opined that even an amendment to the Federal Constitution to enact anti-defection law will not succeed because the freedom of association is one of the fundamental freedoms under Part 2 of the Federal Constitution. This means that Parliament is not allowed to create any amendments which would have the effect of limiting any of the fundamental freedoms mentioned under Part 2.

Theoretical arguments of the law aside, our Prime Minister has made it clear that no anti-hopping law will be passed but it appears that issue will be one that is always up for debates as veteran politician Lim Kit Siang has shown by campaigning for it 40 years ago.