The Coalition for Clean and Fair Elections (Bersih) strongly opposes the proposed amendment to Article 10, which touches on our fundamental liberty to freedom of association, that is to be tabled on 11 April.
While it is undeniable that there is a need to legislate against rampant ‘party-hopping’, we cannot enact bad laws that have the potential to undermine fundamental liberties and dismantle the constitutional protection of healthy inter-party competition and necessary check and balances in a democracy.
And while anti-hopping laws should be enacted before the next general election, it does not and should not be enacted in a rush, simply to satisfy the political bargains between today’s political parties. The consequences of their self-interests today will reverberate for generations to come.
Bersih proposes for the Memorandum of Understanding (MoU) committee and the cabinet to settle for a limited version of an anti-hopping law which excludes expulsion from a party from being defined as party-hopping, as [this would] satisfy the objection of some parties or MPs.
Our position is as below:
- The proposed amendment to Article 10:
(3A) Notwithstanding paragraph (c) of Clause (2) and Clause (3), restrictions on the right to form association conferred by paragraph (c) of Clause (1) relating to membership in a party of members of the House of Representatives and members of the State Legislative Assembly may also be imposed by federal law
That has been strongly criticised by legal experts and other members of civil society as well as MPs, and should be reworded as:
Notwithstanding Clause (2), restrictions on the right to form association, conferred by paragraph (c) of Clause (1), of members of House of Representatives relating to change of their political party affiliation after election, may be imposed by this Constitution.
- In the next parliamentary special meeting, a new Article 49A should be passed with a definition of party-hopping that excludes expulsion, such that it includes the following:
Subject to the provisions of this Article, a member of the House of Representatives shall vacate his seat if—
(a) having been elected as a candidate of a political party, he resigns or ceases for any reason whatsoever except expulsion, to be a member of that party during the relevant term of his election; or
(b) having been elected otherwise than as a candidate of a political party, he joins a political party during the relevant term of his election.
No parliamentary act that would only complicate the matter is needed.
- The proposed addition of Article 10(3A) and Article 49A is sufficient to bypass, where a federal anti-hopping law is concerned, the Supreme Court’s 1992 verdict on Nordin Salleh which ruled out only state-level anti-hopping laws on the ground of restricting freedom of association in Article 10.
By excluding expulsion from a party from the definition of party-hopping, it would indeed weaken the power of the anti-hopping law, as MPs or state legislative assembly members who have effectively defected by acting against their parties, would not resign but wait to be sacked in order to keep their seats in the House or assemblies. While this is not ideal, this compromise is inevitable when society and the political leadership want a traditional form of anti-hopping law but cannot agree on its coverage.
Pursuing the existing path, marked by disputes and delays, not just on Article 10 but also the separate parliamentary act in the next step, we may never see a legal mechanism to deal with the menace of party-hopping before the coming general election. Such a scenario is wholly unacceptable to the public, who have been disappointed and betrayed by the spectacle of collapsing governments brought about by party-hopping in the past two years.
Settling for this limited form of an anti-hopping law can satisfy the public’s demand to see some restrictions on party-hopping before the general election without causing long-term harm to constitutional rights. When the weaknesses of this anti-hopping law emerge, Parliament can seek other remedies such as a recall. For this reason, Parliament must not impose any one-size-fits-all solution on the states by amending the Eighth Schedule.
Instead, states committed to political stability and accountability should take the initiative and be empowered to explore and enact their own anti-hopping instruments, as states in Malaysia (1960s-1990s), India and Canada do even before any federal initiative.
To avoid blind spots in drafting, we urge the government and the MoU steering committee to promise transparency in the process, and that drafts and engagements be made public with reasonable time given for public discussion and feedback. Let this be a new normal in law formulation, where members of the public are informed and can express their preference for MPs to consider and represent. – Bersih