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  • Writer's pictureGavin Jayapal

Anti-hopping laws needed now, more than ever


The Red-Eyed Tree Frog (Agalychnis callidryas)

Anti-hopping laws needed now, more than ever


I was amongst the millions of Malaysians who sat up late into the night on 09 May 2018 (and thereafter, into the wee hours of 10 May 2018) to usher in Malaysia’s new political dawn. I truly feel Malaysia is on a refreshed upward trajectory be it politically, economically and socially.


Notwithstanding this, disquiet has already begun to creep in. There are numerous articles, snippets and voice clips being shared incessantly on social media, outlining how so-and-so intends to defect from Barisan Nasional and enmesh himself/herself with the Pakatan Harapan fold.


The Pakatan Harapan leaders themselves seem to suggest that party-jumpers are to be celebrated, with the MB of Kedah, Mukhriz Mahathir, stating that if there were any party-jumpers (from Barisan Nasional), they would be welcomed (dialu-alukan) [Ref: http://www.astroawani.com/berita-politik/takda-yang-lompat-parti-kalau-mahu-kami-alu-alukan-mukhriz-175197].


This is so notwithstanding Tun Dr Mahathir referring to the defection of Parti Bersatu Sabah members in 1990 as “a stab in the back” [Ref: https://aliran.com/past-issues/1990Vol10No.12.pdf].


The laws pertaining to crossing the floor


Crossing the floor or hopping, as it is known in Malaysia, refers to the act of an elected politician changing his allegiance (quite literally, crossing the floor of Parliament to sit with the opposing party).


As an example, a candidate who ran under a Barisan Nasional ticket may, after the elections, change his allegiance to the Pakatan Harapan Government. This will then remove Barisan Nasional’s mandate. Party hoppers are colloquially referred to as frogs (katak).


Crossing the floor is common in the UK (Ref: http://www.agendani.com/crossing-over/; http://news.bbc.co.uk/2/hi/uk_news/politics/82032.stm), whence we derive much of our administrative law.


A key difference with floor-crossers in the UK and here in Malaysia would be that in the UK, floor crossing is only done on matters of principle. Sir Winston Churchill crossed the floor on several occasions due to disagreements over Government policies; pecuniary considerations were never an issue (Ref: https://winstonchurchill.hillsdale.edu/changing-parties/].


Article 10 of the Federal Constitution


Article 10 guarantees the right to freedom of association. It specifies as follows:


Freedom of speech, assembly and association
10.(1) Subject to Clauses (2), (3) and (4)—
(a) every citizen has the right to freedom of speech and expression;
(b) all citizens have the right to assemble peaceably and without arms;
(c) all citizens have the right to form associations.
(2) Parliament may by law impose—
(a) on the rights conferred by paragraph (a) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence;
(b) on the right conferred by paragraph (b) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof or public order;
(c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.

From a reading of the above, it is clear that all citizens have the right to freedom of speech, expression and to form associations. However, this right is not absolute as Parliament may curtail said rights (Articles 10(2)(a) and (b)) on the grounds of, inter alia, morality.


In Dewan Undangan Negeri Kelantan & Anor v Nordin Bin Salleh & Anor [1992] 1 MLJ 697, the Supreme Court held that a resolution of the Kedah State Legislative Assembly (which resolved that ADUNs who had resigned from the political party under whose ticket they had stood for elections would automatically cease to be members of the legislative assembly and their seats would be declared vacant) was unconstitutional as the same was in breach of Article 10.


Despite this, the Supreme Court recognised Parliament’s power to curtail the right to associate. At page 697:


Quite apart from the rights we have just mentioned, a member enjoys, in common with other citizens, the fundamental rights or liberties guaranteed under art 10(1) of the Federal Constitution, namely, the right to freedom of speech and expression, the right to assemble peaceably and without arms, and the right to form associations, subject to such restrictions as Parliament may impose on the grounds specified in art 10(2).

Crossing the floor: Immoral and despicable


Hopping is synonymous with horse-trading; politicians promise each other numerous political positions, power and even money to switch allegiance. It is a despicable act that reduces the democratic process to nothing more than discussions as to price; integrity, intelligence and honour are all cast aside in the pursuit of monetary gain.


In fact, Lim Kit Siang has come out strongly against party hopping. In what can only be an endorsement, he has reproduced (in verbatim) an article by Dr Toh Kim Woon on his (Lim Kit Siang’s) personal blog [Ref: https://blog.limkitsiang.com/2009/02/15/a-betrayal-of-people%E2%80%99s-trust-in-perak-party-hopping-in-perak/]. I can do no better than to quote the article:


Among the reasons, it is the party hopping for personal monetary or political gains on the part of the hopper, and gaining state power on the part of the party that lures them over, that is most despicable. People generally despise such behaviour, both on the part of the party that lures the hoppers and the hoppers themselves.

In the context of the recently concluded GE-14, there has been speculation that intense horse-trading is also going on in Sabah. In an attempt to form the state Government, one can only surmise that Jeffrey Kitingan has been promised the post of Deputy Chief Minister by the current Chief Minister of Sabah (Musa Aman) [Refer: https://www.malaysiakini.com/news/424236]


At the same time, speculation is rife that Shafie Apdal (Warisan) is in talks with Barisan Nasional elected representatives to get them to switch allegiance, thereby enabling his party (Warisan) to form the State Government.


Is crossing the floor always bad?


One must keep in mind that crossing the floor is not always a bad thing. If an elected representative was to cross the floor due to differences on principle with his/her political party, that may be excused.


Should Barisan Nasional MPs have defected en masse to the Opposition at the height of the 1MDB scandal, I think that there can be no doubt that the same would have been commendable. Instead, what we see today, to not put too fine a point on it, would be rats abandoning a sinking ship.


High-time for Parliament to act


The time is nigh for Parliament (where Pakatan Harapan commands a simple majority) to enact laws that make crossing the floor illegal.


During GE-14, the rakyat voted for the party that they believed in; anecdotal evidence would lead me to believe that the individual traits of MPs did very little to ensure a Pakatan Harapan victory.


For Barisan Nasional’s elected representatives to jump ship at the first hurdle placed in their way (i.e., that their party is no longer in power) speaks volumes as to their character. A leopard can’t change its spots; there is no guarantee that MPs who cross the floor will not also turn their back on their new masters, should the political tides turn.


India, which is no stranger to political manoeuvring, moved to amend her Constitution in 1985 to render party defection illegal (Ref: http://www.prsindia.org/media/articles-by-prs-team/in-parliament-part-1-961/).


As a nascent democracy, the time is nigh for Malaysia to enact laws that prohibit crossing of the floor for monetary gain, personal aggrandisement and political favours.


With the Pakatan Harapan Government’s promise of clean, non-partisan governance where the rule of law is held sacrosanct, we, the people, wait with bated breath to see if they will follow through.


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