Part I

It has been weeks passed the 2008 General Elections. And yet the dust has not quite settled yet. In the aftermath, many voices for reforms have been raised.  Amongst them, are calls for the enactment of an Anti-Party Hopping Act (‘APHA’) – a law which prohibits elected representatives (both Members of Parliament and State Assembly) to switch political parties after being voted in. Essentially, it has the legal effect of expelling an elected representative if he switches political allegiance during his tenure.

The idea was initially proposed by Datuk Zaid Ibrahim, the newly appointed Minister in the Prime Minister’s Department. Since then, it has rapidly gained support from many respected politicians, even among the Opposition, including Mentri Besar Datuk Nik Abdul Aziz Nik Mat from PAS and Karpal Singh from DAP.

There appears to be an urgent need for such a law, as one of the fallouts of the recent general elections has been the rumoured defections of certain elected representatives. PKR adviser Datuk Seri Anwar Ibrahim alleged that he met BN MPs from Sabah and Sarawak on crossing over to the Opposition.

This is not the first time such a law has been in the spotlight. In 1992, the Supreme Court ruled that an anti-hopping law enacted in Kelatan was unconstitutional as it violated the freedom of association as enshrined in the Federal Constitution. Interestingly, both the Sabah and Sarawak State Constitution has a similar law since 1986 and 1994 respectively. So far, such laws have not been challenged in the courts.

According to Article 10 of the Federal Constitution, freedom of association is not absolute. Restrictions can be imposed based on “public order or morality” – which is what most of the supporters of the anti-hopping law is justifying their claims on.
“I will propose to the Cabinet for consideration. It is an issue of integrity and morality,” said Datuk Zaid Ibrahim. “I am sure Malaysians would not want their politicians to hop”. Karpal Singh equated hopping parties as cheating and deception.

But first, let’s look before we leap. Are calls for an APHA justified? Is it effective in solving practical problems? Does it cause any adverse effects to the democratic electoral system in Malaysia? In my view, such a law is unjustified, ineffective and causes grave adverse effects to Malaysian democracy. And here’s why.

Arguments based on ‘public morality’ are based on the idea that there exist a betrayal of trust by the representative to the people. Such a betrayal of trust subsequently assumes that people perceive that switching political parties as a betrayal of trust. But is switching political parties necessarily a betrayal of trust?

Firstly, it is incorrect to assume that everyone votes according to the candidate’s political allegiance. Party allegiance may not be a relevant consideration that decides their vote, or even if it is, it may be just one of many other considerations. Background, personal achievements, character – these are other considerations that motivate people to vote.

True, looking at the political backdrop in Malaysia, many voters decide their votes based on political allegiance. Nevertheless, you cannot say for a 100% certainty that all of them do. And if you cannot say that, you cannot justify a law which assumes in all cases, switching political parties constitutes a betrayal of trust.

For example, electorates from a particular constituency might choose to vote for Mr. X, regardless of his political affiliation, due to his great contributions to the people. It’s unfair to apply the APHA on him, as his supporters might think that him switching political parties is not a big deal.

Do not get me wrong. I am not denying that party allegiance plays an integral factor in voter’s decision-making. All I am saying is that it’s not the sole factor, and that it’s unfair to enact a law which arbitrarily assumes all voters solely vote based on party allegiance.

Secondly, even if there is a betrayal of trust, so what? Elected representatives constantly reneged on their promises in their manifesto, but are they bound to such promises? Do the law disqualify them once they fail to particular promise? No, it does not. Thus, it is discriminative, and strange, should the law penalise representatives from abandoning the abstract political ideals of their parties, but not those who abandon their practical promises to the people.

In the latter case, there is a potential backlash – that the representative will risk blemishing his track record, and being overlooked during the next election. There is no reason to suppose why such a backlash should act as a adequate retribution, and deterrence towards party-hoppers as well.

On the second issue of effectiveness, it has also been said that a justification for the APHA is for ‘public order’ i.e. address the administrative difficulties caused by party-hopping. So, the question is this: how effective does the APHA address such administrative difficulties?

What are such administrative difficulties? Threatening a coalition’s majority? Threatening the passing of a bill? If such are the concerns, then such problems can occur even without party-hopping. Representatives can be bribed to support a no-confidence vote against the PM or MB, or simply to vote against his party’s bill, without officially switching parties (if such acts are tantamount to ‘switching parties’ under the APHA, I would then argue that it diminishes the spirit of democracy – see Part II).

And note that such concerns only become apparent when the coalition party holds a slim majority in the Parliament/State Assembly, as a few defections can turn the tables overnight. But isn’t that an inherent problem stemming from weakness of the parties themselves? That if you do not command a comfortable majority, you should expect that your bills may not be passed, or worse, suffer a no-confidence vote? Does it not, in a sense, reflect how divided the electorate is, and thus, defections are a norm in a fickle society?

Do not get me wrong. I am not saying that a ruling coalition commanding a slim majority is a healthy political scenario. I am merely saying that it does happen, and when it does happen, the fair and honourable thing to do is to face the consequences of shifting winds, and not enact laws which builds artificial barriers in a divided society. If representatives defect, let them defect. If it threatens the ruling coalition’s powers, then the solution would be to call for fresh elections. It’s a burden, yes. But it’s better than maintaining a government build on artificial stilts for the next four or five years.

This is why the recent decision of Serbia’s ruling coalition to call for fresh elections after encountering divided opinions within its ranks on the issue of Kosovo’s independence should be lauded. Similarly, if the fate of the Parliament or State Assembly’s control truly hangs in balance, the best solution is to refer back to the people. That’s truly giving effect to the spirit of democracy – not the APHA.

To be continue in Part II

(This article is contributed by Raphael Kok, law student of University Malaya)