How does the anti-hopping law work? Can it be manipulated?

In 2022, the Opposition and the ruling PN coalition entered into an agreement. Two major consequences of it were the passing of the anti-hopping law, and the law allowing those aged 18 or above to vote in any election. 

In 2022, there was an amendment to several clauses of the Federal Constitution.

There is no parliamentary law against anti-hopping.

What does the new anti-hopping law say?

Two concepts are important. First, what is a political party, by definition?  Second, when does an MP lose his seat?

A political party is any society that – by and for its members, participates – even indirectly – in any activity that seeks the election of its members to the Dewan Rakyat or into any State Legislative Assembly.

The aim of the change in law

The change in the law prevents the mischief of politicians from leaping from one party to another party. If they do, they destroy the voters’ electoral mandate by transferring power from one group of politicians to another.

The JV partners inserted Article 49A into the Federal Constitution with this as the primary aim.

When does an MP lose this seat?

If an MP or an ADUN transforms into an amphibian, forgets why his constituency voted for him, and ‘hops’ over to another party, his seat falls vacant.

A by-election must be held to replace him.

When does an MP or a member of a State Legislative Assembly (called an ‘ADUN’ in the local context) offend the anti-hopping law?

A politician must satisfy three conditions before the anti-hopping law applies to him/her.

First, he must have been elected into Parliament (the Dewan Rakyat) or a State Legislative Assembly (DUN).

Second, he must have been elected by being a ‘member of a political party’, or as an independent candidate.

Third, while he is an MP, three separate circumstances will trigger the anti-hopping law.

The three triggers

These triggers are:-

1. the politician ‘resigns’ from his current political party; or
2. he ‘ceases’ to be a member of his political party; (this concept of ‘ceasing’ is a bit confusing; and we will turn to that shortly); or
3. as an Independent Candidate, he joins any political party.

If an MP or a member of an ADUN falls foul of any one of the three triggers,  then his seat will fall vacant.

But curiously, if a person is kicked out of his party, he can still be an MP

On 21 November 2022, one local news portal reported that an UMNO MP,  Dato Seri Hishammuddin Hussein, had declared that he would not obey the dictates of Barisan National’s leadership, even if he was to be ‘expelled’.

There is a political strategy at work here.

If an MP is ‘expelled’ from his political party, however, he still keeps the right to continue as an MP: (Under article 49A(2)).

So an amphibian MP may use this trick. He forces a party to commence disciplinary proceedings against him. One punishment out of a range of punishments is expulsion.

If the party then kicks him out, he can still continue to be an MP.

What do the courts say about a politician who challenges his party’s decision?

A member of a political party is bound by the rules of his party.

In Dato Pasamanickam & Anor v. Agnes Joseph [1980] 2 MLJ 92, Agnes sued a political party and its leaders. She asked for a declaration that a branch AGM had been unconstitutional. She complained that proper notice for the EGM had not been given. 

The question was whether the MIC Rules, which forbade references of disputes to court without resort to the MIC CWC, were unconstitutional.

The High Court fell back on the ruling in Tharmalingam v Sambanthan [1961] MLJ 63.

In Tharmalingam, the High Court had ruled that if a member of a society does not like its rules: he has one of several choices: he may refrain from joining the society. 

If already a member of a society, he could persuade his fellow members to change the rule that he did not like. But so long as the rules remained, he was bound by them.

Again, under sec. 18C of the Societies Act 1966, a political party’s decision could not be challenged in court. This is an ouster clause. The decision of the party on any disputed question was final.

However, cases like Tharmalingam, or Agnes Joseph, and sections such as sec.18C are likely to be ruled unconstitutional these days, because courts do not like ouster clauses.

When does an MP or an ADUN ‘cease’ to be a member of his political party?

Under the new Anti-hopping law, if an MP or ADUN ‘ceases to be a member’ of his party, then his seat becomes vacant.

‘Resignation’ as a member is different from his ‘cessation of membership’.

When will a party’s membership ‘cease’?

That would depend on the constitution of the party, would it not?

For a start, even the Federal Constitution states that a person is ‘disqualified’ as an MP if certain conditions exist:

I can cite six constitutional circumstances.

For example, if the MP is:-

1. of ‘unsound mind’; or
2. an undischarged bankrupt; or
3. ‘holds an office for profit’; or
4. fails to lodge any return of election expenses; or
5. convicted of any crime and is sentenced to at least a year of imprisonment or a fine of not less than RM2,000.00; or if
6. he has become a citizen of another country.

All that is in the Constitution.

However, in a society’s constitution, there may be additional clauses.

Look at an example

Suppose Society A is a political party.  It is a pure vegan society. Its objectives are to prevent its citizens from consuming animal or poultry products.  

Society A has a constitutional clause prohibiting its members from joining any society whose stated objectives are contrary to Society A.

These rules state that if any member joins society B, he ‘shall cease’ to be a member of Society A.

Suppose Political Society B encourages the consumption of these products.

X,  is a member of Society A.

He joins Society B.

If we apply this example to our question, in these instances, X ‘ceases’ to be a member of the society.

For example, clause 15.6 of the Constitution of the Malaysian Indian Congress (or ‘MIC’,) states that if a member takes the party to court over the propriety of party elections, he ‘shall cease to be a member’. 

These automatic cessation clauses are in law, expulsion clauses. 

Again, under clause 15.7, if an MIC member merely ‘states his intention to join another political party’, he ‘shall cease’ to be a member of the MIC.

But if such a member of MIC, e.g. is an MP, or an ADUN, he loses his status as an MP or as ADUN,  under Art. 49A(a)(ii).

How will political parties overcome this ‘expulsion’ hurdle?

A party could choose not to expel such a member.

If the society’s rules allow it, a dissenting MP of a society may merely be suspended for a period of time. He remains a member, but may lose some of his privileges, e.g. the right to vote.

It is for this reason several parties have recently changed their internal rules from the punishment of ‘expulsion’ to one of cessation of membership’.

Yet, the ‘cessation’ of membership and ‘expulsion’ are a mere play of words.

No local court has ever ruled on this point. In the years to come, this will be a contentious point. If a person wishes to jump from one party to another, he will do whatever it takes because it is money that talks; not moral obligation, and certainly not any duty as a trustee of the people or of the nation.

We expect this of politicians: especially those who wish to leap from one party to another for their own personal gratification. That is another story for another day.

What if an entire party has its registration cancelled?

In that case, an MP who is a member of a political party which is ‘dissolved’ or has ‘its registration cancelled’ does not lose his status as an MP or ADUN: Article 49A(2)(a).

The last exception

This is where a person resigns from his party to become a speaker either in Parliament or in a state legislative assembly. In such a case, he still retains his position as an MP or ADUN.

There is yet a fourth step: the role of the Speaker

If the Speaker of the Parliament, or the Dun must receive ‘a written notice’ from a member of the House to the effect that a ‘casual vacancy’ has occurred.

The Speaker must then ‘establish’ this is so: and then ‘declare’ that the offending MP’s or DUN’s seat has fallen vacant. 

The Election Commission

The Speaker then informs the Election Commission of the casual vacancy: and that too within 21 days of the notice.  

The Election Commission must then hold an election within 60 days of receiving the speaker’s notification

What if the Speaker or the EC refuses to act?

You might think this a silly question.

Yet there are examples (before the Anti-hopping law came into force) where a Speaker of a State Legislative Assembly refused to declare some DUN seats vacant, holding that ‘no casual vacancy’ had fallen.

For example, in Jamaluddin bin Mohd Radzi & Ors v. Sivakumar a/l Varatharaju Naidu [2009] 4 MLJ 593, three members of the ruling coalition in Perak resigned and supported Barisan Nasional. The Speaker ruled that their seats had fallen vacant. The Federal Court ruled the Speaker had no power to make that ruling. That power only belonged to the Election Commission, the court ruled.

In Dato Dr Zambry bin Abd Kadir v. Dato Seri Ir Hj Mohammad Nizar bin Jamaluddin (AG Intervenor) [2009] 5 MLJ 464, the Election Commission refused to vacate the seats of three defecting members. The Court of Appeal upheld the EC’s decision.

Conclusion

The law on anti-hopping is still not complete. It requires greater precision. All the loopholes must be closed.

That can be done by a simple act of parliament.

We wait to see what the politicians will do.

[The author wishes to express his gratitude to KN Geetha, JD Prabhkirat, GS Saran, RJ Nevina and JG Gomez.]