FEDERAL CONSTITUTION ANTI-HOPPING
LAW
Since the Federal Constitution and
the country’s laws did not prohibit party-hopping, politicians were free to
jump to other political parties without losing their seats as an MP or state
lawmaker (which could reverse the overall election outcomes and trigger changes
in the government — especially when the ruling coalition only has a slim
majority).
After anti-hopping law: What the
Federal Constitution says now
In 2022, Parliament finally enacted
the Constitution (Amendment) (No. 3) Act 2022 — more popularly known as the
“anti-hopping law” — to amend the Federal Constitution, aiming to discourage
elected lawmakers from switching between political parties after they are
elected by voters.
The Bill for the anti-hopping law
was passed at the Dewan Rakyat on July 28, 2022 and at the Dewan Negara on
August 9, 2022, before receiving royal assent on August 31, 2022 and gazetted
as law on September 6, 2022.
Through this “anti-hopping law”
which came into force on October 5, 2022, Article 48(6) was deleted, which means
any MP who resigns as MP will be able to seek re-election at any time and will
not face a five-year disqualification period upon resignation.
The anti-hopping law also introduced
the new provision Article 49A, where an MP in the Dewan Rakyat will “cease” to
be an MP and his seat will become vacant in either of these scenarios:
1) Elected as MP as a political
party’s member, but “resigns” or “ceases to be” this party’s member; or
2) Elected as MP as an independent
candidate, but joins a political party as a member.
And what does a “member of a
political party” in Article 49A mean? The explanatory note in the government’s
Bill — which later became law — says this can include an MP who is not a member
of any party in a coalition but is a member of the coalition.
The anti-hopping law also amends
Article 160 to define “political party” as also including a “coalition”.
The Bill’s explanatory note gives an
illustration or example where a party member will not cease to be an MP, namely
if his party leaves a coalition of political parties. This is regardless of
whether the party then joins another coalition or forms a new coalition.
On the flip side, Article 49A also
states the specific scenarios when an MP will not “cease” becoming an MP:
If his political party is dissolved
or the party’s registration is cancelled, or
If he resigns as his political
party’s member when appointed as a Speaker, or
If his political party expels him as
a member
(The Bill’s explanatory note gives
examples of when an MP will not cease to be an MP, such as when two parties are
either dissolved or deregistered as they had merged and the members of those
two parties can remain as MPs; or when a party is dissolved and deregistered
and its members then become another party’s members.
(Another example clarifies that a
person who is expelled from their party — regardless of whether he joins
another party or forms a new party — will not cease to be MP.)
So here’s a loophole: If an MP quits
their party, they lose their parliamentary seat. But if the party sacks an MP,
the MP keeps his or her parliamentary seat. (We will see later how different
parties try to fix this loophole.)
Under Article 49A, when the Dewan
Rakyat Speaker receives a written notice from an MP that one of the MPs’ seat
has become vacant (e.g. because the latter quits his party), the Speaker will
notify the Election Commission (EC) within 21 days, and the EC will then hold a
fresh election for the seat within 60 days.
(Q: What about an MP’s right to form
associations (which is guaranteed under Article 10(1)(c) to all Malaysians and
which could only be restricted by federal law on national security, public
order, morality reasons or by labour and education laws)?
(A: The Federal Constitution now has
an added Article 10(3A), which allows the right to form associations to be
restricted by Article 49A for MPs and by the new Section 7A of the Eighth
Schedule for state lawmakers. So what this means is that the new anti-hopping
provisions are allowed under the Federal Constitution and do not breach the
Article 10 constitutional right.)
Bersatu: Plugging the loophole
Since late last year, Parti Pribumi
Bersatu Malaysia realised that it had a problem: Six MPs from the party did not
quit as members, but gave their support to rival party PKR’s president Datuk
Seri Anwar Ibrahim in his current role as prime minister. (The first of the six
MPs made the declaration of support to Anwar as PM on October 12, 2023, while
the sixth MP declared this on January 24, 2024.)
These six MPs did not fit in any of
the existing boxes in Bersatu’s party rules which would end their membership
and lead to fresh elections for their parliamentary seats.
Under Article 10 of Bersatu’s
existing constitution, a member’s party membership will immediately cease if
any of these seven things happen, including: if they write to the
secretary-general to ask to stop being a member; publicly declare quitting the
party; or join or become a member of any other political parties in Malaysia.
The other four scenarios which would
make someone immediately lose their Bersatu membership are: if they contest in
elections without Bersatu’s permission or as independent candidate, or if they
act as proposer or seconder in the nomination papers for an independent
candidate or rival party’s candidate in elections; are expelled through the
party’s disciplinary process; brings any party matters or membership rights to
the courts; or loses their Malaysian citizenship.
This was a “loophole” situation: The
six MPs continued to keep their parliamentary seats and Bersatu party
membership despite backing Anwar as PM, as they did not quit the party or join
other parties. Bersatu wanted them to lose their parliamentary seats, but
expelling them would not result in fresh elections under the Federal
Constitution’s anti-hopping provisions.
So Bersatu wanted to fix this by
changing its own party constitution. (Bersatu deputy president Datuk Seri Ahmad
Faizal Azumu previously in February told Malay Mail that any
proposed amendments to Bersatu’s constitution must be tabled before an annual
general meeting or extraordinary general meeting, and that a two-third majority
support is needed to pass such amendments.)
So following its six MPs’ actions,
what Bersatu did was to hold an extraordinary general meeting (EGM) on March 2
this year, where all the party delegates present unanimously voted to change
the party’s constitution in order to plug this “loophole”.
Bersatu decided to add three
sub-clauses (Articles 10.4, 10.5, 10.6), including the new rule
that any Bersatu members — who are MPs in the Dewan Rakyat or are state
legislative members and who do not comply with the Bersatu supreme council’s
written orders to them — are considered to have their party membership ceased
immediately.
How will this help Bersatu make the
six MPs lose their seats to trigger fresh elections, to pave the way for
Bersatu to send its own candidates to seek to win those seats to replace the
six MPs?
(Answer: Bersatu’s plan is to make
these MPs lose their party membership by “ceasing” to be a party member
(through their disobedience of the party’s written orders), which would then
cause the MPs to lose their seats under the new anti-hopping provisions in
Article 49A.)
Now official
While Bersatu decided to change its
party constitution, the newly-added rules could only be enforced after the
Registrar of Societies’ (RoS) approval.
Under the Societies Act 1966’s
Section 11(1)(b), no registered society shall amend its rules without the RoS’
prior approval, and an application for the amendment of the rules is required
to be made to the RoS within 60 days of the decision to amend the rules.
On March 2, Bersatu president Tan Sri
Muhyiddin Yassin said the party will immediately enforce its new rules once the
RoS approves them, and that the party will verify with the six MPs if it is
true they support PM Anwar, and that the MPs would then lose their
parliamentary seats if they say yes.
Meanwhile, another Bersatu member
had already made a move, this time Selat Klang assemblyman Datuk Abdul Rashid
Asari who on March 6 declared support for rival party PKR vice-president Datuk
Seri Amirudin Shari as Selangor menteri besar. But at the same time, the former
Selangor Bersatu chief said he remains committed as a Bersatu member and will
continue serving as Selat Klang assemblyman.
Yesterday, Bersatu Youth chief Wan
Ahmad Fayhsal Wan Ahmad Kamal announced that RoS has
approved the amendments to the Bersatu constitution which would
enable the vacating of parliamentary seats of the six Bersatu MPs who expressed
support for Anwar and would pave the way for by-elections. Attached with his
announcement on Facebook was the RoS approval letter dated April 1 and which
stated that the Bersatu constitution with the new amendments could take effect
from April 1 onwards.
Quick tour of the other political
parties
DAP
In DAP’s party constitution as of
July 2022, Clause IV’s Section 12 requires a party member — who won elections
as a DAP candidate — to resign from their positions in the local council, or as
MP or as a state assemblyman, if they resign from DAP or “cease” to be a DAP
member.
How would they cease to be a DAP
member? Clause III’s Section 3 says this happens when they join any other
political party.
Clause IV’s Section 13 says a person
will “cease” to be a DAP member if: found or declared to be of unsound mind;
declared bankrupt; convicted of offence involving dishonesty and moral
turpitude; or files any court action on any party matter without first using up
all the avenues available in the party.
On September 25, 2022, DAP delegates
in a near-unanimous vote — except for two who opposed — approved
amending the party’s constitution, which its secretary-general
Anthony Loke had said would close loopholes in the “anti-hopping law”, by
enabling the removal of party members who had breached the party’s laws. This
was just weeks after the “anti-hopping law” was gazetted. The RoS on November
1, 2022 approved those DAP constitutional amendments.
In its latest party constitution as
of November 1, 2022 on DAP’s website, a new Section 4 has been added to Clause
III, where a DAP member who is an elected MP in the Dewan Rakyat, an appointed
lawmaker in Dewan Negara or a lawmaker in a state legislative assembly shall —
subject to DAP’s central executive committee’s (CEC) approval — “cease” to be a
party member upon non-compliance of any directive issued by the CEC under the
newly-created Section 9(j) in Clause XII.
Section 9(j) enables the CEC to
issue specific directives to any or all of its lawmakers in the Dewan Rakyat,
Dewan Negara or state legislative assemblies, and all such directives have to
be in writing unless the party secretary-general directs otherwise.
In other words, under the new rules
in the DAP constitution, disobeying a written order by the party’s central
leadership will result in an MP ceasing to be a party member.
This would then result in an MP
losing their parliamentary seat upon ceasing to be a DAP member for
disobedience of written directives, which would then result in a by-election,
based on the “anti-hopping” provisions in the Federal Constitution.
Umno
In Umno’s party constitution on its
website, a person ceases to be a member upon bringing party matters or
membership rights to court before fully complying with the party’s rules
(Article 20.7); or if this person is verified to have become a registered
member of another party. Umno can also expel its members (Article 20.8). (This
online version does not include the latest amendments.)
Previously, Umno’s constitution’s
Article 20.11 stated that an Umno member who won in elections — but then leaves
Umno or then contests as an independent candidate or a candidate under a rival
party in elections for parliamentary or state seats — will cease to be a
member.
On January 13, 2023, Umno’s party
delegates unanimously voted to amend the party’s constitution to align with the
anti-hopping law.
The amendment was to rework Article
20.11 in Umno’s party constitution into two new provisions on when party
membership will automatically cease: Article 20.11.1 (An Umno member elected as
an MP or state assemblyman then joins a political alliance which Umno is not
part of or chooses to be an independent lawmaker); and Article 20.11.2 (An Umno
member contests in any elections as an independent candidate or as candidate of
a political alliance that Umno is not part of).
A Flourish table
OK, what about lawmakers in the
states? Will the same anti-hopping laws apply to them?
A Flourish table
Just as Malaysia has the Federal
Constitution, states in Malaysia have their own respective state constitutions
— which are all required to contain a list of the same essential provisions
under the Federal Constitution’s Eighth Schedule. Think of it as a standard
template that each state must include in its state constitution.
Under the new anti-hopping law’s
addition of Section 7A for the Eighth Schedule or the template for state
constitutions, similar anti-hopping provisions in Article 49A for MPs will
apply to state assemblymen.
But law minister Datuk Seri Azalina
Othman Said had previously said Section 6 in the anti-hopping law —
Constitution (Amendment) (No. 3) Act 2022 — gives space for state governments
or state legislatures to enact provisions to prohibit lawmakers from switching
parties by amending their state constitutions, subject to the state rulers’ or
state governors’ agreement.
Based on news reports, the 10 states
which had subsequently enacted their own state laws on anti-hopping provisions
are Selangor, Penang, Perak, Perlis, Negeri Sembilan, Kelantan, Sarawak, Kedah,
Sabah, Melaka.