What is Party-Hopping?
As the name suggests, party-hopping means hopping from one party to another. In the political realm, the term used to describe the act of MPs switching allegiances is known as party-hopping, which can sometimes be referred to as party-switching, floor-crossing, defection or crossover [1].
Party-hopping has a profound effect on the balance of power in the legislature, which has resulted in the collapses of the Federal and several state governments. Successful and failed attempts to jump ship have evoked political apathy amongst Malaysian, with many becoming increasingly dispirited. This nefarious betrayal of the voter’s mandate is often regarded as a morally wrong act as it goes against the values of trust, integrity and loyalty.
Why Hop Over to the Other Side?
“Immoral”, “unethical” and “selfish” are among some of the common words used to describe the action of hoppers.
The probing question that would naturally arise is “Why?”. Simple yet complex. Well, there are many answers which include the expression that “cash is king”,[2] the “need to win” syndrome, [3] dissatisfaction with party direction and genuine ideological conviction [4].
Nonetheless, the main argument for the freedom to defect can be attributed to the idea of parliamentarian independence famously championed by Winston Churchill who despite having changed his party affiliation thrice, did not damage his standing in politics and still managed to become Prime Minister of the United Kingdom [5].
Driven by the rhetoric of conscientious first, constituents second and party third, he postulates that there is no doubt of the order in which these three loyalties stand under any healthy manifestation of democracy [6]. Doing the right thing will always come first. However, in this day and age, political mileage is upheld at the expense of the community. In the name of freedom of association, politicians are allowed (though not encouraged) to become renegades.
The Current Law
Regardless of your personal feelings or affiliations, it is important for us to understand what is the legal position of party-hopping in Malaysia, and for that, we will be examining the Federal Constitution in greater detail.
Article 10(c) of the Federal Constitution provides that ‘all citizens have the right to form associations. Interpreting this provision literally, we are free to associate, disassociate and reassociate with any clubs, societies and organisations. By and large, this right has also been extended to the political realm where politicians are free to align themselves with parties that best fit their interests.
While valiant attempts have been made by some state governments to enact anti-hopping legislation in the past, these efforts have yet to come to fruition. Due to the doctrine of constitutional supremacy, any state laws which are inconsistent with the provisions of the Federal Constitution shall be deemed invalid, illustrated in Dewan Undangan Negri Kelantan v Nordin Salleh [7].
Restrictions on the freedom of association can only be enforced at the federal level which means that only Parliament has the power to pass anti-hopping laws. However, this cannot take place unless Article 10(c) has been amended. Until and unless this has been done, the elephant in the room will continue to exist
Why Party-Hopping is Harmful?
From a moral standpoint, party-hopping is frowned upon as it “unethical” for those in public service to betray the trust that voters have placed in their ability to serve. A closer examination of the status quo will reveal that there is a larger issue than immorality. If this trend persists, many are likely to be disheartened and may be under the impression that the value of their vote seems to be secondary to these megalomaniac politicians [8]. This would defeat the whole purpose of having elections in the first place as democracy is undermined.
Remedies
To discourage lawmakers from switching parties, the rules of the game must be rewritten.
Carrot and Stick Approach
The power and resource gaps between winners (government/ministers) and losers (opposition/government backbenchers) must be narrowed. All MPs regardless of affiliation should be rewarded with similar carrots, wherein they are entitled to access both the constituency development funds (CDFs) and state funds. Discrepancies in terms of funding should only arise in the urban-rural context [9]. In accordance with the concept that no one is above with law, all MPs should be subjected to the same stick or in other words, to the same risk of prosecution by law enforcement agencies.
Limiting Payroll Vote
It’s no secret that party-hopping is incentivised by the benefits of being king-makers due to the strong correlation between the tripartite power, perks and prospects. Politics is very much a winner-takes-all environment, as such one can be labelled as a ‘loser’ for simply being in opposition. Major carrots which include ministerial posts and remunerative political appointments, most notably government-linked companies (GLC) appointments should be capped [10].
Anti-Hopping Law (AHL)
Although lawmakers and academics have regarded the AHL as one of the most effective mechanisms to curtail “frogging” culture, the main argument against the enactment of such legislation is that it would violate Article 10 of the Federal Constitution, which protects freedom of association [11]
.
Advocates of the law have put forth several suggestions, which can be done by way of adding a clause to Article 10 (2)(c), expressly prohibiting party hopping which is prejudicial to public order [12]. Further, there have been calls to amend Article 48(6), such that if an MP decides to switch parties, he should resign from his seat and offer himself for re-election to seek for the voters’ mandate [13].
Recall Election Law (REL)
A method that restores power to the voters, the REL can be used by voters to terminate their mandate for their elected representatives before their five-year tenure. The REL is divided into two stages, with the preliminary phase being the initiation of the recall process which involves gathering a sufficient number of signatures within four months to support the recall [14].
Upon verification of the signatories by the Election Commission, which must be representative of 10% of registered voters in the entire constituency, a recall vote will take place allowing voters to choose whether they would like to have the incumbent removed. If a majority of voters voted in favour of removing the incumbent, a normal by-election will be held to fill that vacancy [15].
Conclusion
While these suggestions sound good in theory, with the latter two having proven to be effective by countries that have implemented these laws, it is important to remind ourselves that there is no one-size-fits-all solution.
As opposed to directing our attention to deterrent measures, perhaps we should look into the bigger picture of larger democratic issues, with the focus on fostering a culture of mature politics and a more informed electorate [16].
Real change requires thoughtful re-evaluation so instead of taking a piecemeal approach of enacting anti-hopping legislation or policies, a comprehensive review of relevant constitutional provisions, election laws and political parties must be done,[17] otherwise, these efforts could run the risk of being futile.
Disclaimer: The views expressed in this article belong solely to the author and do not reflect the views of Taylor's Education Group. Additionally, this article is for informational purposes only. Please exercise your discretion before making any judgements.
Additional disclaimer: Taylor’s University maintains non-partisanism and is not affiliated with any political party. As such, we have purely analysed the issue from a legal standpoint.
References
[1] Kenneth Janda, ‘Laws Against Party Switching, Defecting, or Floor Crossing in National Parliaments’ (2009) The Legal Regulations of Political Parties in Post War Europe 1-2.
[2] Yoursay, ‘Party hopping - it’s all about the almighty ringgit’ (Malaysiakini. 24 May 2020) <https://www.malaysiakini.com/news/527108> accessed 1 June 2021.
[3] GK Ganesan, ‘Should Party-hopping be outlawed?’ (Malaysiakini, 24 December 2018) <https://www.malaysiakini.com/letters/457582> accessed 1 June 2021.
[4] Sherell Jeffrey, ‘Party hopping immoral, says Law expert’ (Daily Express, 15 September 2019) <https://www.dailyexpress.com.my/news/140506/party-hopping-immoral-says-law-expert/> accessed 3 June 2021.
[5] Paul Addison, ‘The Three Careers of Winstin Churchill’ (2001) 11 Transactions of the Royal Historical Society 183 - 199.
[6] Stephen King-Hall, ‘The Duties of a Member of Parliament by the Rt. Hon Sir Winston Churchill’ (1954) Volume VIII Issue 3 Parliamentary Affairs 302.
[7] [1992] 1 CLJ 343.
[8] P Ramakrishnan, ‘Party-hoppers, where are your consciences?’ (Malaysiakini, 9 March 2021) <https://www.malaysiakini.com/letters/565861> accessed 9 June 2021.
[9]] Wong Chin Huat, ‘How To Deter Party Hopping in Malaysia? An Exploration of Remedies’ (The Coalition for Clean and Fair Elections (BERSIH 2.0), 4 January 2021) at [3]
<https://www.researchgate.net/publication/348678792_HOW_TO_DETER_PARTY_HOPPING_IN_MALAYSIA_An_Exploration_of_Remedies> accessed 1 June 2021.
[10] Wong (n 9) 15.
[11] Wong (n 9) 33 - 36.
[12] Danesh Prakash Chacko, ‘MYSay: A menu of remedies to deal with party-hopping’ (The Edge Malaysia, 30 October 2020) <https://www.theedgemarkets.com/article/mysay-menu-remedies-deal-partyhopping> accessed 1 June 2021.
[13] n/a, ‘New laws to tackle party-hopping may not be best solution, M’sian lawyer says’ (Today Online, 4 January 2019)
<https://www.todayonline.com/world/new-laws-tackle-party-hopping-may-not-be-best-solution-lawyers-say> accessed 4 June 2021.
[14] Wong (n 9) 37 - 38.
[15] Chacko (n 12).
[16] Ida Lim, ‘Lawyers: New laws to tackle party-hopping may not be best solution’ (Malay Mail, 4 January 2019) <https://www.malaymail.com/news/malaysia/2019/01/04/lawyers-new-laws-to-tackle-party-hopping-may-not-be-best-solution/1708902> accessed 3 June 2021.
[17] Lim (n 16).
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