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Monday, March 24, 2008

Anti-Hopping: Of Politics, Morality and the Law

There is a great deal of discussion in the media about the possibility of elected members of parliament crossing over to parties other than those that they were members of when they contested in the recent General Election. Some opinion leaders, including the recently appointed “Law” Minister, Datuk Zaid Ibrahim, and constitutional law scholar, Professor Shad Faruqi, both of whom I have respect for, have suggested that laws aimed at preventing such cross-overs, or “hopping”, should be enacted and that such legislation, if enacted, would be consistent with the Federal Constitution.

I have my reservations about the correctness of these views. Though the “morality” of a decision by a particular member of parliament to cross over may be questionable, there are several inter-locking aspects that must be considered. As will be shown, these center on two core themes: the freedom of association and the freedom of choice.

It would be best to deal with the more obvious aspects of the issue. The Federal Constitution guarantees the freedom of association (Article 10(1)(c)). The Supreme Court in 1992 decided that this freedom necessarily includes the right to dissociate (Dewan Undangan Negeri Kelantan & Another v Nordin Salleh & Another). In so concluding, the Supreme Court struck down as unconstitutional legislation by which the Kelantan state constitution had been amended to declare a seat vacant if a member of the state legislature resigned from or left his/her political party. The Nordin Salleh decision has become foundation for the proposition that anti-hopping laws are unconstitutional.

It must be noted that Parliament can however legislate laws that impact on these freedoms if such laws are deemed “necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality” (Article 10(2)(c)). It would follow that if crossing over were a threat to security, public order or morality, it would be permissible to enact laws to restrict the right to association and, concomitantly, the right to dissociation. I believe that in articulating the positions they do, Datuk Zaid and Professor Shad rely on this proviso.

There is a difficulty with this view.

The proviso allows for encroachment into a guaranteed fundamental liberty. Constitutionally guaranteed liberties are jealously guarded as they represent the foundations of the free choice that democracies are built on. It is a hallowed principle of constitutional law that encroachment is allowed for only where the Constitution permits such encroachment. Further, those provisions that allow for such encroachment are to be interpreted narrowly so as to allow only for a degree of encroachment that is essential to achieve the aim underlying such provisions. It is apparent that the proviso in Article 10(2)(c) is aimed at ensuring public security and public morality. The standard of morality that decisions are to be benchmarked however is the general standard of the community as a whole and not the standard adopted by certain factions within the community. This is an important feature of this discussion and I will return to it.

Further, it is settled principle that encroachment is permissible only to the extent that it falls within a margin referred to as the “margin of appreciation”. The boundaries of the margin, as is clear from the expression of the constitutional provision, are defined by “necessity”. Whether there is a necessity is not to be determined subjectively. Jurisprudence on this issue points to an objective assessment of a given situation to determine whether such encroachment is necessary in the interests of democracy, having regard to public security or morality. If so, then an incursion is permitted. This is however not to be taken as a blanket right on the part of legislature to enact laws as it pleases. The incursion must be proportionate to the nature of the threat sought to be dealt with.

From the above, it is clear that encroachment is permissible but within a very narrow margin. The question is therefore whether the reasoning advanced in support of a call for anti-hopping legislation falls within that margin.

Before considering the question, it would be useful to remind ourselves that the Federal Constitution and the state constitutions do not limit candidates for elections at the federal and state levels respectively to members of political parties. In fact, the Federal Constitution expressly declares that unless disqualified every citizen resident in the country qualifies for membership (Article 47). Election laws reinforce this position further. This is why independent candidates are qualified to stand for elections. I have made a point of reiterating this to demonstrate that from the constitutional and legal perspective, voters vote individuals rather than parties. No matter the social considerations, in particular trends that point to some voters voting by reference to parties rather than individuals, when determining the legality of a situation (and conversely, to determine whether a situation should be made illegal), it is the constitutional and legal perspective that matters.

From this perspective, it is not readily apparent that a member of parliament is, as some have suggested, “cheating” his constituents by leaving the political party he was in when elected. The assumption in law is that he was voted in as an individual and not as a member of a political party. That the characterization (of cheating) is used loosely as is clearly shown by the fact that it is improbable that a member of parliament could be charged, let alone convicted, of the offence of cheating for leaving his party.

We must therefore address the question by asking ourselves whether it is wrong to firstly, dissociate from a political party, and if no, then whether dissociating is made wrong by joining another political party. In my view as the former cannot be answered absolutely in the affirmative, then the latter must be answered in the negative. My reasoning is as follows.

I have already explained the ‘personal’ as opposed to ‘party’ basis of elections. Let us explore that further by assuming that a member of a particular party has been elected a member of parliament. He is then required by the political party to do something – for instance, involve himself in corruption – that he doe not agree with as a matter of principle. He sees that corruption has become so entrenched that, in effect, it stands in as an ideology of the party. He decides that he can no longer associate with the party and its members for their advocating of corruption. Is it being suggested that he cannot leave the party?

The example is an extreme one but it goes to illustrate how nuanced the question really is. In order to enact anti-hopping legislation, all the nuances will have to be considered. And as this is done, it will be progressively seen that it would be impossible to predict with certainty the various permutations involved. For a law to be enacted, it must be capable of certainty. The possible scenarios that present themselves do not allow for the level of certainty required of legislation. Not every case of dissociation and cross-association is necessarily immoral as some suggest. In fact, some might see such actions as not immoral at all.

The political perspectives of party members who’s interests may be affected by such actions is not a true perspective and cannot be made the basis of law.

I can however see that there is sense is establishing a basis for deterring disassociations and cross-associations committed in bad faith. I believe that the basis is already in existence. There are laws pertaining aimed at preventing corruption that can be invoked if in fact members of parliament were ‘bought off’ by opponents. If such action involves elements of criminality, the Penal Code provides for a range of offences. There are also offences created under the Election laws.

And above all, there is the voter whose perception of a particular member of parliament will be affected by actions on the part of the latter that are seen as morally wrong. The fact that a member of parliament will lose credibility and be seen as untrustworthy and lose the next election is the strongest deterrent.

Is there a basis or even a need for anti-hopping laws? I do not think so.



Shanmuga K said...

I agree. I referred to the legal position of voting for the MP rather than his party as a "fiction" in conversation with a friend, but on hindsight I think this is overstating the case. Many people do vote for the candidate rather than the party. Perhaps this is an opportune moment to start a debate on how we should be reforming the electoral system. Some form of proportional representation seems necessary given the statistics of the voting patterns in the latest election. I would like to see a hybrid election system where we can vote for the party, for an individual MP and for our senators. However, it's taken the Labour government all this while to finally see the sense of such a system, so I don't see the powers that be here in Malaysia agreeing to this all that quickly.


Anonymous said...

In my opinion, I don't see the need for enacting such a law as there are more critical matters for Zaid to be concern with.

If he's really a man fighting for a fair Malaysia, these are some of the areas I can think of -
1. setting right some of the ambiguous Constitutional changes that was pass without hardly a debate
2. the position of the Constitution versus the Syariah Law
3. restoring a tarnish judiciary.

Veena Pillai said...

What happens in other countries? Do they face this same problem - and if they do, what are their laws?

Anonymous said...

If the lawmakers want to change party, they should at least ask the opinion from people in their area first,or maybe redo the polls. In this way, at least the party change will not be betraying the democracy. If they confident that rakyat are voting for candidate rather than party, this mean there is nothing they should be afraid of if we redo the polls.

Cruzeiro said...

I have made a point of reiterating this to demonstrate that from the constitutional and legal perspective, voters vote individuals rather than parties.

Dear Malik,
With all due respect Malik - I beg to differ.

In an election, the people do not vote for an individual or a party entirely - they vote for an individual and the platform upon which he builds/makes his stand. And that, has to be consistent.

To say that the candidate is an individual and as such is entitled to "freedom of association" is a very simplistic argument to be used in this scenario.

Allow me to ask- Do you honestly believe the the people (of Kelana Jaya, was it?) actually voted for the cameraman of the Lingamgate Video(Mr. Loh Gwe Burne) who works overseas and can hardly speak proper Malay?

I seriously doubt it - the people voted for the party in this case. There is no way in heaven or hell that he could have won the seat, had he contested as an independant.

Taking this into consideration, should he decide to "jump ship", it would only be ethical that he vacate his seat and recontest on the platform of what he represents.

It is not about being pro or anti Zaid/ Shad/ Govt/ Opposition here - it is a matter of principles that would determine true representation of ideals and an "informed choice" that is due to the electorate.

As you said on Al- Jazeera - That is what, was at the heart of the Bersih March of 10.11.07.

Anonymous said...

UMNO's new found morality is laughable. While it preaches water, it drinks wine. There is more to the ear than meets the eye. If they were honest, they should have done it before when they had absolute control. Now that they feel weak, they are preaching morality. It is utter nonsense.

Basically this new measure is for political expediency and not about morality and political maturity and trust. Secondly, UMNO and BN want to suffocate all their elected members. For example, there is this obnoxious collective responsibility that allows no room for contradiction and diverse opinion. In this case, BN will continue to do its dirty things but whenever an MP feels the need to talk against it, he will be suppressed. If heels he is on the wrong side and therefore he should go to the better side, he will be denied since BN passed the BN anti-hopping legislation. So, it brings more harm than good. It denies people the fundamental right of association. It shackles people and denies them the right to oppose, evaluate later and correct things. It is immoral.

WY said...


Thanks for enlightening us, the commoners, on the legality of such public issue. I think citizens are more empowered to make rational decision - knowing their Constitution, is indeed a powerful piece of legal document.

me said...

Many people are selecting sides and coming to their own conclusions about the vote party v. vote candidate issues.

But I ask each and everyone of them, what empirical evidence do you hold to prove your case and generalise voters?

Whatever the intentions of voters on polling day and how much a candidate or party swayed their views, it cannot be denied that the Westminster First-Past-The-Post system is inherently designed for votes by candidates.

You can debate til your mouth run dry, bt the system is itself rigged towards one preference.

The only way to end this debate is electoral reform, and to that end, I'd suggest the German Additional Member System in which FPTP lives alongside Proportional Representation.


Anonymous said...

I dont understand something. How is anti-hopping law unconstitutional? In that it restricts the right of a person to join any organisation or associations they wish? From what i gather, anti-hopping law states that a person who "hops" to another party must vacate the seat he has won, and cause a by-election. The katak is still allowed to remain in his new party. So what so unconstitutional about this? Is it a flawed or politically influenced decision by the Supreme Court? The right under Art. 10 is clearly not absolute.

Anonymous said...

nice one.

Anonymous said...


Thanks your legal point of view which is very thorough for understanding.

If Politics, Morality and the Law all look from the point of Human Rights then there should not be too difficult to bring all in one floor!

When all are to be based on Fairness onto the parties involved and Fairness of the Majority should be Prior!
Law could be simpler and easier to talk and walk!

But, in reality, only Morality is loosely taken as Fairness for those involved. Are Politicians and Law maker (legislation), executor (Government Offices, Police..), preserver (Lawyer & Court) practicing Human Rights, or Justice or Fairness?

Is Constitution been set-up and amended for Fairness?
Has EC Act be fairly stated and executed or be taken to court when it was not?

Law is only a book
When all the ingredients do not work!
Law book could end up in Bazaar for warping peanuts!

If the Fundamental Rights of a Person in seeking Professional Service from Lawyer can be jeopardized by a Defamation case
when the Lawyer is not doing the job
with Abuse of Bar Council to forward Explanation to Complainant.
Further acquired lawyers to Defense only denying and not rebutting the particulars of the allegation.
Refusing to including counterclaim and chasing after Statement of Facts & Issues
Nor commenting a Messy Bundle of Document
Nor pressing for Discrepancies
Nor attending courts
but asking Police to chase off the Clients from their office!
Court does not act but ask Clients to do the job!!
Will Law be fairly executed, protected in Malaysia?
Or, is Law meant to be Law in Malaysia?

Lawyers after Lawyers, Judge after Judge, a case is stuck!!
Talking Law without Justice be seen and practiced is talking in Kampung depending on the mercy of GOD!!

Unknown said...

Much as I do not favour party-hopping after time, money, and most importantly, trust and reputation has been expended on and leveraged by a candidate by a party under which umbrella the candidate contests, I have to grudgingly agree with Malik that anti-hopping laws may not have a place in my crystal ball.

Nobody can deny that GE12 was a vote of dissent against the BN. I'd venture to say that less than 30% of the DAP-PKR-PAS votes were votes of confidence in this coalition. I also have my serious doubts about the confidence of the electorate in their MP where they voted against BN in favour of a video maker.

Short-cutting to the bottom line, freedom of expression does not only work in the positive, i.e. by show of support. It also presents as a voice against a common enemy, in which case the outcome may be dangerous (but this is a diversion to be excused for now). Just as much as voters have a right to demand that the person whom they supported stays put, the call of the day is integrity. And integrity sadly demands that an elected representative act with a clear concience. Hence if the party under which he/she contested is deemed to have embraced actions against high moral standards, it surely cannot be wrong for party-hopping to be the order of the day.

I would say metaphorically that, in GE12, even if a pig stood against BN, the Malays would have still voted against BN. After the victory, would we really expect the pig to stay in the sty or go for a bio-reengineering? I'd bet on re-dressing as essential for the pig's survival.

In this practical aspect, where would anti-hopping laws have a foothold?

Discourses on anti-hopping have also been centered on individuals contesting under a specific party umbrella. I wish to turn the clock back to the days just before Sabah lost its status as an opposition state. Joseph Pairin Kitingan took his PBS to a landslide wipeout of BN. Sabahans had voted for PBS. There was no ensuing party hopping. But yet, in the final enalysis, Sabahans still lost the elections then because PBS did an about turn and joined the BN. The party did a coalition-hopping. Imagine if this happened in the aftermath of GE12 instead of the days of TDM! It could still happen - with PBS pulling out of the Federal ruler's coalition. It will not be a welcomed move by many, but there will be those who voted PBS in who feel that justice is finally brought to a full round. Voters voice aside, wouldn't it be right for a party to review its affiliation with a coalition umbrella if they feel that the umbrella body is no longer representative of its agenda, mission and cause? Can PBS be deemed a traitor for denouncing the hiatus over the Terengganu MB? Or the street demonstations organised from within the Federal Government? Or the difference in application of restrain by the law enforcers against BN and non-BN "civil-renegades"?

Post-elections crossing of borders is not among the most ethical of practices, but IMHO, they are valid grounds which warrant such "disgusting" behaviour.

Anonymous said...

I'm sure no BN MP will indulge in any kind of hopping. One or two may be sleeping while most of the others are merely jaywalking, a great BN tradition for the last 30 years or so. The more vocal ones are in denial. No need to pass a law against that as all they need is a kick up their arse in the interest of their mental health.