We had previously provided updates on the status of the proposed anti-party hopping law in Malaysia, with the most recent development being that the tabling of the proposed law had been deferred and that a parliamentary special select committee (‘PSSC’) would be tasked to review and prepare a draft of the Bill specifically to stop party hopping.¹ 
 
The Minister in the Prime Minister’s Department (Parliament and Law), Datuk Seri Dr Wan Junaidi bin Tuanku Jaafar, recently unveiled details relating to the proposed new law at a press conference.² The key points outlined by the Minister are set out below.
 
1.  What does the anti-party hopping law do?
 
The proposed anti-party hopping law will provide that a “casual vacancy” will arise in a Parliamentary constituency when the Member of Parliament (‘MP’) of that constituency: 

2.  What happens then?
 
The occurrence of any of the events mentioned in Question 1 above (‘trigger event’) will result in a by-election being held for that constituency within 60 days after the Speaker of the Dewan Rakyat (House of Representatives) receives a notice of the vacancy, provided that, within 20 days of his/her receipt of the notice, the Speaker has: (a) verified that the MP has ‘hopped’; and (b) declared the seat vacant.
 
However, if a trigger event occurs three years or more after the parliamentary term commenced, the seat will become vacant but a by-election will not be held.³
 
3.  Can the former MP contest the by-election?
 
The former MP whose seat is vacated by reason of a trigger event is permitted to contest in the by-election.
 
4.  How will the law be enacted?
 
The proposed anti-party hopping law will be effected by amendments to the Federal Constitution. In particular, Article 10 (freedom of association) will be amended and a new Article 49A will be introduced to deal with casual vacancies arising from party-hopping.
 
5.  What falls outside the proposed new law?
 
According to the de facto Minister of Law, the proposed anti-party hopping law will not apply to: 

6.  When will the law be tabled?
 
Datuk Seri Dr Wan Junaidi has indicated that the proposed amendments to the Federal Constitution to give effect to the proposed anti-party hopping law could be tabled at a special one-day sitting of Parliament in mid-June 2022. The Minister added that the PSSC was in favour of a one-day sitting but it would be for the Prime Minister to decide.⁴  
 
Comments
 
Two of the circumstances that are excluded from the proposed anti-party hopping law give rise to concerns. First, the exclusion of involuntary expulsion as a trigger event could result in attempts by a disgruntled MP to be a disruptive influence within his political party so as to force his expulsion, thereby avoiding a by-election being triggered.
 
Second, and more significantly, the exclusion of party defections from the proposed anti-party hopping law raises questions as to the effectiveness of the proposed law as large-scale party-hopping by MPs through a party defection will not result in a vacation of seats of the MPs of the party concerned. While the proposed new law may discourage individual MPs from party-hopping, it may not prevent an entire legion of political frogs from switching allegiance by hopping from one coalition to another.
 
On the second point, Datuk Seri Dr Wan Junaidi said that the PSSC has tried “to cover as many things as possible” and “have discussed all kinds of scenarios.” The Minister added that “… 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.” Could the proposed anti-party hopping law prove to be fertile ground for litigation?
 
Update by Kok Chee Kheong (Partner) and Tan Wei Liang (Senior Associate) of the Corporate Practice of Skrine. 

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