The Dewan Rakyat (House of Representatives) of the Malaysian Parliament passed the Constitution (Amendment) (No.3) Bill 2022 (‘
the Bill’) on 28 July 2022 after a two-day debate. The Bill, which seeks to discourage Members of Parliament from switching political party allegiance, was passed by a unanimous vote of all 209 Members of Parliament present at the Dewan Rakyat, with 11 Members of Parliament absent.
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The Member of Parliament for Bera, who is also the Prime Minister of Malaysia, is reported to have described the law as a historic milestone for the nation’s political stability.
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Having cleared the most challenging hurdle in the legislative process, the Bill will be tabled before the Dewan Negara (Senate) and if passed, will be presented to the Yang di-Pertuan Agong for Royal Assent before being gazetted and coming into force. According to the Minister in the Prime Minister’s Department (Parliament and Law), Datuk Seri Dr Wan Junaidi bin Tuanku Jaafar, the Bill “
should be ready to become law by the first week of September.”
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Still fresh in the minds of Malaysians are the defections that occurred in February 2020 which resulted in the collapse of the then government in what is now described as the “
Sheraton Move”.
As the Bill continues its legislative journey towards becoming law, can Malaysians heave a sigh of relieve that such political manoeuvrings leading to the fall of a ruling government will be consigned to the annals of history?
Background
The Bill introduces anti-party hopping provisions into our Federal Constitution (“
the FC”). This means that once the Bill becomes law, it can only be amended or rescinded by amending the FC – a process requiring the affirmative vote of not less than two-thirds majority of both Houses of Parliament. Hence, it will be more difficult for the anti-party hopping provisions to be amended than if they were included in an Act of Parliament (as originally proposed) for which a simple majority of both Houses will suffice. To this extent, the government of the day is to be congratulated.
As mentioned above, the provisions of the Bill presented to the Dewan Rakyat on 11 April 2022 had proposed to allow federal law to impose restrictions relating to membership in a political party of members of the Dewan Rakyat and members of a State Legislative Assembly (“
State Assembly”). This proposal was superseded by the amendments proposed by the Parliamentary Special Select Committee (‘
PSSC’) and it is these amendments that were adopted by the Dewan Rakyat on 28 July 2022.
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Crux of the anti-party hopping law
The crux of the anti-party hopping law lies in the new Article 49A and new section 7A of Part I of the Eighth Schedule to be introduced into the FC.
Article 49A
Clause (1) of the new Article 49A provides,
inter alia, that a member of the Dewan Rakyat (‘
MP’) shall cease to be a member of that House and his seat shall become vacant if the MP:
| (a) |
having been elected to the Dewan Rakyat as a member of a political party, resigns as, or ceases to be, a member of that political party; or |
| (b) |
having been elected to the Dewan Rakyat otherwise than as a member of a political party (i.e. an independent candidate), joins a political party as a member. |
Clause (2) of Article 49A sets out three exceptions whereby the membership of an MP in the Dewan Rakyat shall not cease by reason only of:
| (a) |
the dissolution or cancellation of the registration of the MP’s political party; |
| (b) |
the MP’s resignation from membership of his political party upon election as a Speaker; or |
| (c) |
the expulsion of the MP from membership of his political party. |
In terms of procedure, Article 49A requires the Speaker to establish whether a casual vacancy has occurred in respect of an MP’s seat in the Dewan Rakyat within 21 days of being notified in writing by any MP that a casual vacancy has occurred, and to notify the Election Commission (‘
EC’) accordingly. If the Speaker establishes that a casual vacancy has occurred, the EC is required to hold an election to fill that vacancy within 60 days from the receipt of the notification from the Speaker.
Section 7A of the Eighth Schedule
Part I of the Eighth Schedule to the FC sets out ‘essential provisions’ that must be adopted, or substantially adopted, in State Constitutions.
The provisions of the new section 7A of Part I of the Eighth Schedule, which are substantially similar to Article 49A, are summarised below.
Subsection (1) of section 7A provides,
inter alia, that a member of a State Legislative Assembly (‘
State Assemblyman’) shall cease to be a member of that Legislative Assembly and his seat shall become vacant if that Assemblyman:
| (a) |
having been elected to the State Assembly as a member of a political party, resigns as, or ceases to be, a member of that political party; or |
| (b) |
having been elected to the State Assembly otherwise than as a member of a political party joins a political party as a member. |
Subsection (2) of section 7A sets out three situations whereby the membership of a State Assemblyman in a State Assembly shall not cease by reason only of:
| (a) |
the dissolution or cancellation of the registration of the State Assemblyman’s political party; |
| (b) |
the State Assemblyman’s resignation from membership of his political party upon election as a Speaker; or |
| (c) |
the expulsion of the State Assemblyman from membership of his political party. |
As in the case of Article 49A, section 7A requires the Speaker of a State Assembly to establish whether a casual vacancy has occurred in respect of a State Assemblyman’s seat in the State Assembly within 21 days of being notified in writing by any State Assemblyman that a casual vacancy has occurred, and to notify the EC accordingly. If the Speaker establishes that a casual vacancy has occurred, the EC is required to hold an election to fill that vacancy within 60 days from the receipt of the notification from the Speaker.
Comments
The present government is to be commended on two counts. First, for attempting to stop the malaise of party hopping which has plagued Malaysian politics in recent years and caused the fall of a federal government and several state governments, allegedly for astronomical sums of money or positions of power.
Second, the introduction of section 7A into Part I of the Eighth Schedule of the FC will require State Assemblies to adopt the anti-party hopping provisions into their State Constitutions. Further, Clause (4) of Article 71 of the FC empowers Parliament to enact law to give effect in a State to these provisions. Thus, it is likely that over time, anti-party hopping laws that are identical or substantially identical to Article 49A of the FC will apply to State Assemblies.
However, a scrutiny of the new provisions reveals two major drawbacks in the Bill. First, an MP who is expelled from his political party is not required to vacate his seat in Parliament. Herein lies a loophole that can be exploited. Instead of resigning to join another political party which will trigger a vacancy in his seat, an MP can conduct himself in a manner that is so disruptive or prejudicial to the interests of his political party that the latter is left with no practical alternative but to expel the MP, thus leaving him free to join another political party without triggering the anti-party hopping provisions.
Second, and more significantly, the anti-party hopping provisions do not apply to MPs when their political party joins a coalition or leaves a coalition to join another. Viewed from this perspective, the anti-party hopping law can be likened to a fishing net that catches small fish but allows a shoal to swim through. This is a major shortcoming of the Bill and the comment attributed to the Member of Parliament of Bera that the law will bring political stability to the country may overstate the effectiveness of the new law. Thus the spectre of the Sheraton Move, where the defection of a political party to join another coalition resulted in the collapse of the ruling federal government, will continue to hang over Malaysian politics even after the anti-party hopping law comes into force.
It may be recalled that the PSSC comprises 11 MPs from both sides of the political divide. As acknowledged by the Minister in the Prime Minister’s Department (Parliament and Law), Datuk Seri Dr Wan Junaidi, who chaired the PSSC, “…
the consensus is that we won’t be able to cover all aspects. If we try to stifle too much, it would not be democratic.”
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It has been said that politics is an art of compromise. It would appear from Datuk Seri Dr Wan Junaidi’s statement that Malaysia’s anti-party hopping law may have been the result of a compromise between political parties from both sides of the political divide. Being born out of a compromise, the anti-party hopping law itself appears to be compromised.
Article by Kok Chee Kheong (Partner) and Tan Wei Liang (Senior Associate) of the Corporate Practice of Skrine.