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.