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April 2022 Vol 2 No 17

Your Editor, Jamari Mohtar, feels despite the huge obstacles in introducing the anti-hopping law (AHL), it is still doable if the focus of such law to prevent political instability takes centre stage, and the approach is to amend the provision that will change the tenure of the term of office of MPs.

  • One big obstacle in introducing an AHL is the ruling by the then Supreme Court of Malaysia in 1992, which interpreted the constitution and declared that crossing over to another political party was a freedom of association.
  • Thus, in order to introduce the AHL, the first order of business is for Parliament to approve a constitutional amendment to bypass the 1992 court ruling.
  • And this requires a two-thirds majority vote among parliamentarians for the constitutional amendment to be passed.
  • In that landmark 1992 case, Nordin Salleh (Sungai Pinang) and Wan Mohamed Najib Wan Mohamaed (Limbongan) won their state seats under the then Semangat 46 ticket in the 1990 general election.
  • However, both defected to Umno in 1991. The Kelantan State Assembly amended the state constitution and then passed an AHL that took retrospective effect from Nov 18, 1990.
  • The Speaker declared the seats vacant and both men contested the seats again in the by-elections but lost.They sought legal remedy and the Supreme Court held that the amendment to the state constitution was designed to enforce party discipline and not impose restrictions on state assemblymen.
  • Hence, the court said the amendment breached Article 10 of the Federal Constitution, which guarantees freedom of association.
  • Nordin and Wan Mohamed were reinstated as assemblymen.
  • So, the first step in introducing an AHL is for Parliament to approve a constitutional amendment to bypass the 1992 court ruling.
  • But even this is not straightforward, as the amendment could be challenged in the Federal Court because any party concerned could seek legal remedy.
  • In 2015, retired Federal Court judge Datuk Seri Gopal Sri Ram, was reported to have said there could be no AHL in Malaysia because of the 1992 landmark judicial pronouncement.
  • “Even an amendment to the constitution will fail because freedoms under Part 2 of the national charter form part of the basic framework,” said Sri Ram.
  • Sri Ram, who has delivered judgement in several landmark constitutional cases, said Parliament could not enact laws, including the constitution that touched on the basic structure like freedom of association.
  • He said in the 1992 ruling, the bench interpreted that the right to association included the freedom to disassociate, which is basically the right to hop.
  • But arguing as a layman, your Editor doesn’t think it is right or ethical to treat the laws and the Federal Constitution in a rigid manner, even with regards to matters that fall under the ambit of basic framework especially when the harmful effect of such rigidity is there for all to see.
  • After all, the laws and the Constitution recognise that the concept of freedom is not absolute, even with regards to basic freedoms.
  • The harmful effect to the nation and the rakyat of political instability that ensued when politicians from the same coalition fought with one another to ensure the sitting prime minister (PM) handed over power to someone else at a specified time, which the said PM refused, and the ensuing brouhaha via the Sheraton Move that ultimately caused a change in government, all can be traced back to the freedom given to hop from one party to another.
  • Ditto with having three PMs within two years since 2020 has created both political and economic instability.
  • In September 2020, international ratings agency, Fitch Solutions, predicted politics in Malaysia is expected to blunt economic growth for the next decade.
  • Combined with slower population growth and reduced fiscal space to cushion against negative future economic shocks, Fitch predicted real GDP growth to be at just 3.4% over the next 10 years compared to 6.4% over the past decade.
  • Already for 2021, the first year of the new decade, GDP grew at 3.1% – lower than the 3.4% predicted by Fitch, which means politics still reared its ugly head in 2021.
  • Moreover, a frequent change in government within a short period of time means government policies will be in a flux, with companies especially foreign investors like the MNCs unable to plan and make reasonable forecasts on their project, leading to their wait-and-see stance when it comes to their investment commitments in Malaysia.
  • Hence, political instability with all its negative outcomes on the country, which is primarily caused by party hopping, must be kept in check via curtailing the freedom to hop through introducing an AHL.
  • At the minimum, a way must be thought of in which the right to hop is still there but without affecting political stability.
  • One way to ensure the right to switch party is still there but won’t necessarily result in political instability is to add a constitutional provision whereby the seat of an MP shall become vacant if he or she ceases to be a member of, or is expelled or resigns from the political party for which he or she stood in the election. 
  • So a by-election will be called for the seat in which the former MP can contest under the ticket of his or her new party. 
  • It is as if the former MP is asking for endorsement for his move to switch party from the electorate, which had earlier voted him, and it is really up to the electorate to endorse him or not through their votes during the by-election. 
  • This is a win-win situation for three reasons – there’s no need for a constitutional amendment to bypass the 1992 court ruling; the right and freedom to disassociate from his party, and then the right and freedom to associate with a new party, which are both recognised by the Constitution are preserved; and finally the stigma of leap frogging, which is associated with the insinuations of being “bribed” or blackmailed are removed because the MP concerned has to vacate his seat, and goes through a by-election in which he may win or lose. 
  • As for an Independent MP, the same applies when his status as an independent legislator changes when he joins any political parties. 
  • This has to be added as a separate clause in the new constitutional provision to remove the ambiguity that the new provision doesn’t apply to Independent MPs simply because expressions like “ceases to be a member of, or is expelled or resigns from the political party” do not make sense to them, as they do not have a political party to begin with. 
  • With this separate clause for Independent MPs, it means they too have to vacate their parliamentary seats because switching party for them is a change in status from one who has no party to one with membership of a party. 
  • But of course, this new constitutional provision is an amendment to the Constitution and thus will require the two-third majority votes for it to be passed. 
  • This provision will minimise political instability because each MP who wishes to switch party will have to think twice or rather more than twice of losing his seat, along with the uncertainty of winning a by-election under the ticket of the new party. 
  • Just to see how useful this provision is in mitigating political instability, let’s assume that this provision was there during the Sheraton Move. 
  • The Pakatan Harapan (PH) government then wouldn’t have been brought down because it won’t be easy for a new coalition government to be formed with the support of more than 111 MPs.
  • The Perikatan Nasional (PN) government was formed because of its ability to get the support of about 116 MPs. Out of this, 11 MPs had switched party from PKR to Bersatu.
  • Without this defection, PN won’t be able to get the support of 116 MPs, only the support of 105 MPs, which was not enough to form a government.
  • With the provision in place, this would mean the 11 PKR MPs would have to vacate their seat and 11 by-elections would have to be called.
  • Of course it can be argued that PN can still form the government if these 11 MPs all won the by-elections under the ticket of their new party.
  • But it can also be argued that in the first place these 11 MPs would not have switched party if they know they will have to lose their seats and contest in a by-election in which their victory is not guaranteed.
  • Meanwhile the act of a political party to withdraw from a coalition should not be considered as party hopping.
  • To take the example of the Sheraton Move, when Bersatu pulled out from PH government, all Bersatu MPs were still members of Bersatu before and after the pulled-out.
  • The 11 PKR MPs who supported Bersatu’s move in pulling out from PH were still members of PKR, before and after the pulled-out. It was much later after the pulled-out when they were sacked by PKR that they then became members of Bersatu.
  • So at the point of pulling out, there was no party hopping then.
  • Similarly for Umno when it decided to join the PN ruling coalition, all 39 Umno MPs were still members of Umno before and after the party joined the PN ruling coalition.
  • Moreover, in a democracy, any coalition is a political pact among political parties with any member of the pact having the right to withdraw at anytime if the member concerned felt the pact has deviated from its original aim and purpose.

Read more on the Supreme Court 1992 landmark case, the need for an anti-hopping law, political and economic instability, and amendment on the tenure of MPs’ term of office:

  • The MP for Padang Rengas, Datuk Seri Mohamed Nazri Abdul Aziz had proposed for this novel and creative idea of a party-list based general election (GE) way back in 2020.
  • Under this scheme, it is the party that is the candidate in a GE, not an individual member of the party as currently practised.
  • At the ballot box, voters will tick the party symbol and logo for the party they want to represent them in a constituency. The winner will still be based on the first-past-the post (FPTP) system in which the party with the most votes will win the seat.
  • And as per the FPTP system, the party winning the most number of seats will form the government.
  • At the conclusion of the GE, the winning party of a constituency will then appoint a member of the party to be the MP of the constituency.
  • Under the current system, the party nominates a candidate of its own (an individual) during nomination day whereas in the party-list based GE, there are no individual candidates, as they will only be appointed as an MP by the winning party after the election. But what has this got to do with party hopping? A lot!
  • If midway through his term, the appointed MP jumps ship to another party, he cannot carry along his MP seat to his new party.
  • This is because that seat does not belong to him but the winning party that has appointed him to be the MP.
  • Moreover, when an MP switches party, the seat does not have to be vacated to make way for a by-election. Instead, the winning party will appoint another individual member of the party as the new MP for the seat.
  • The beauty about this proposal is not only is the freedom to switch party is allowed but there won’t be political instability because the winning party still holds to the seat via a new appointment of MP.
  • On top of this, taxpayers’ monies are substantially saved from holding a by-election.
  • Assuming if this proposal is in place during the Sheraton Move, then there is no need to organise the 11 by-elections for the 11 PKR MPs who switched allegiance to a new party under the earlier proposal of amending the tenure of the term of office of MPs.
  • One can just imagine the cost of organising 11 by-elections and the hefty saving gained from not organising them.
  • Even when a sitting MP dies or is incapacitated from performing his MP duty or loses his MP-ship due to a criminal conviction, there is no need to call for a by-election to replace him.
  • The winning party will just appoint another member of the party to replace him as the new MP.
  • In this brilliant scheme, the issue of the mandate of the rakyat given during a GE being stolen after the GE will become irrelevant because the mandate will be with the winning party throughout until the next GE.
  • According to Mohamed Nazri, a trained lawyer who was also a former de facto law minister, the amendment to the Election Commission Act 1957 to enforce a party-list system, in which voters would elect parties rather than individuals, only needed a simple majority to be approved.
  • This was unlike the two-thirds majority necessary for amendments to the Federal Constitution.
  • Speaking in Parliament on Nov 22 last year, Mohamed Nazri, however, conceded that his proposal would not cover independent lawmakers, but said that was the risk voters must take in the unlikely event they opted to back one.
  • He further noted that independent lawmakers were not beholden to support any party even now.
  • “Yes. You have to live with him for five years. It’s your choice.
  • “Anyway, when you want to form a government, you vote for the party. How can you vote for individuals? You can’t. The party forms the government. Not an individual,” he added.
  • Labelling the Melaka polls as an election that should not have happened, Nazri took the opportunity to call for an anti-party hopping legislation.
  • According to him, the Melaka state election was not welcomed by the people, given that the pandemic is on-going and the government is attempting to push for economic recovery.
  • “But irresponsible politicians with selfish intentions started a move that saw the fall of the (state) government.
  • “The people hate politicians like this – they put their self-interests first, not the people’s interest.
  • Saying that event like this has caused the political profession to be despised and heavily criticised by the people, he then called for the establishment of a bipartisan select committee chaired by the Dewan Rakyat speaker to stop lawmakers from switching parties.
  • He also urged the minister in charge of Parliament and law to present recommendations for a bill to the cabinet that can then be submitted to the Attorney-General’s Chambers for further study.
  • “We must do this fast, because if you don’t have a general election next year (2022), we could have one in 2023, two years from now. • “This is serious because the people will strongly support this law,” Nazri said.
Read more on party-list based general election:
  • Scientists have discovered microplastics in human blood for the first time, warning that the ubiquitous particles could also be making their way into organs.
  • The tiny pieces of mostly invisible plastic have already been found almost everywhere else on Earth, from the deepest oceans to the highest mountains as well as in the air, soil and food chain.
  • A Dutch study published in the Environment International journal on March 24 examined blood samples from 22 anonymous, healthy volunteers and found microplastics in nearly 80% of them.
  • The study was funded by the Netherlands Organisation for Health Research and Development as well as Common Seas, a UK-based group aimed at reducing plastic pollution.
  • The impact on health is as yet unknown. But researchers are concerned as microplastics cause damage to human cells in the laboratory and air pollution particles are already known to enter the body and cause millions of early deaths a year.
  • People were already known to consume the tiny particles via food and water as well as breathing them in, and they have been found in the faeces of babies and adults.
  • In the latest study, researchers looked for plastics in the blood samples that were between 700 and 500,000 nanometres (nm). Seven hundred nm is about 140 times smaller than the width of a human hair.
  • The team used steel syringe needles and glass tubes to avoid contamination, and tested for background levels of microplastics using blank samples.
  • Polyethylene terephthalate (PET), commonly used in disposable water bottles, was the most widely encountered plastic polymer and found in the blood of about 50% of the volunteers.
  • The second most common microplastics, polystyrene (PS), which is used for food packaging and polystyrene foam, was found in about 36% of the volunteers.
  • “Our study is the first indication that we have polymer particles in our blood – it’s a breakthrough result,” said Prof Dick Vethaak, an ecotoxicologist at Vrije Universiteit Amsterdam in the Netherlands.
  • “But we have to extend the research and increase the sample sizes, the number of polymers assessed, etc.” Further studies by a number of groups are already under way, he said.
  • Vethaak acknowledged the amount and type of plastic varied considerably between the blood samples. “But this is a pioneering study,” he said, with more work now needed.
  • He said the differences might reflect short-term exposure before the blood samples were taken, such as drinking from a plastic-lined coffee cup, or wearing a plastic face mask.
  • “The big question is what is happening in our body?” Vethaak said. “Are the particles retained in the body? Are they transported to certain organs, such as getting past the blood-brain barrier? And are these levels sufficiently high to trigger disease? We urgently need to fund further research so we can find out.”
  • Alice Horton, anthropogenic contaminants scientist at Britain’s National Oceanography Centre, said the study “unequivocally” proved there was microplastics in blood.
  • “This study contributes to the evidence that plastic particles have not just pervaded throughout the environment, but are pervading our bodies too,” she told the Science Media Centre.
  • Fay Couceiro, reader in biogeochemistry and environmental pollution at the University of Portsmouth, said that despite the small sample size and lack of data on the exposure level of participants, she felt the study was “robust and will stand up to scrutiny”.
  • She also called for further research.
  • “After all blood links all the organs of our body and if plastic is there, it could be anywhere in us.”
  • A recent study found that microplastics can latch on to the outer membranes of red blood cells and may limit their ability to transport oxygen.
  • The particles have also been found in the placentas of pregnant women, and in pregnant rats they pass rapidly through the lungs into the hearts, brains and other organs of the foetuses.
  • Environmentalists, policymakers and governments appear to be taking note of the dangers of microplastics in the environment.
  • At the Environment Assembly of the UN Environment Programme (UNEP) early last month, more than 170 countries pledged to develop an international, legally-binding treaty to tackle plastic pollution by 2024 in which microplastics is considered as a type of pollutant.
  • Meanwhile Health Minister, Khairy Jamaluddin, expressed shock at the findings of the Dutch scientists and will raise the matter with the Malaysian Health Research Institute on replicating the same study here to ascertain whether microplastics has already entered our blood stream system. 
Learn more on the findings of the Dutch scientists:

One big obstacle in introducing an AHL is the ruling by the then Supreme Court of Malaysia in 1992, which interpreted the constitution and declared that crossing over to another political party was a freedom of association.

Thus, in order to introduce the AHL, the first order of business is for Parliament to approve a constitutional amendment to bypass the 1992 court ruling, which will require a two-thirds majority vote.

Even if this constitutional amendment is approved, it could still be challenged in the Federal Court because any party concerned could seek legal remedy.

In 2015, retired Federal Court judge Datuk Seri Gopal Sri Ram, was reported to have said there could be no AHL in Malaysia because of the 1992 landmark judicial pronouncement.

“Even an amendment to the constitution will fail because freedoms under Part 2 of the national charter form part of the basic framework,” said Sri Ram, who has delivered judgement in several landmark constitutional cases.

According to him, Parliament could not enact laws, including the constitution that touched on the basic structure like freedom of association.

He also said in the 1992 ruling, the bench interpreted the right to association included the freedom to disassociate, which is basically the right to hop.

But it is right to treat the laws and the Federal Constitution in a rigid manner, even with regards to matters that fall under the ambit of basic framework especially when the harmful effect of such rigidity is there for all to see?

After all, the laws and the Constitution recognise that the concept of freedom is not absolute, even with regards to basic freedoms.

The harmful effect to the nation and the rakyat of political instability can be traced back to the freedom given to hop from one party to another. Ditto with having three PMs within two years since 2020 has created both political and economic instability.

In September 2020, international ratings agency, Fitch Solutions, predicted politics in Malaysia is expected to blunt economic growth for the next decade.

Combined with slower population growth and reduced fiscal space to cushion against negative future economic shocks, Fitch predicted real GDP growth to be at just 3.4% over the next 10 years compared to 6.4% over the past decade.

Already for 2021, the first year of the new decade, GDP grew at 3.1% – lower than the 3.4% predicted by Fitch, which means politics still reared its ugly head in 2021.

Moreover, a frequent change in government within a short period of time means government policies will be in a flux, with companies especially foreign investors like the MNCs unable to plan and make reasonable forecasts on their project, leading to their wait-and-see stance when it comes to their investment commitments in Malaysia

Hence, political instability with all its negative outcomes on the country, which is primarily caused by party hopping, must be kept in check via curtailing the freedom to hop through introducing an AHL.

At the minimum, a way must be thought of in which the right to hop is still there but without affecting political stability.

One way to ensure the right to switch party is still there but won’t necessarily result in political instability is to add a constitutional provision whereby the seat of an MP shall become vacant if he or she ceases to be a member of, or is expelled or resigns from the political party for which he or she stood in the election.

A by-election will be called for the seat in which the former MP can contest under the ticket of his or her new party.

It is as if the former MP is asking for endorsement for his move to switch party from the electorate, which had earlier voted him, and it is really up to the electorate to endorse him through their votes during the by-election.

This is a win-win situation for three reasons – there’s no need for a constitutional amendment to bypass the 1992 court ruling; the right and freedom to disassociate from a party and to associate with another party, both recognised by the Constitution, are preserved; and finally the stigma of party hopping, which is associated with being “bribed” or blackmailed are removed because the MP concerned has to vacate his seat, and goes through a by-election in which he may win or lose.

As for an Independent MP, the same applies when his status as an independent legislator changes when he joins any political parties.

This has to be added as a separate clause in the new constitutional provision to remove the ambiguity the new provision doesn’t apply to Independent MPs simply because expressions like “ceases to be a member of, or is expelled or resigns from the political party” do not make sense to them, as they do not have a political party to begin with.

With this separate clause for Independent MPs, it means they too have to vacate their parliamentary seats because switching party for them is a change in status from one who has no party to one with membership of a party.

Just to see how useful this provision is in mitigating political instability, let’s assume that this provision was there during the Sheraton Move.

The Pakatan Harapan (PH) government then wouldn’t have been brought down because it won’t be easy for a new coalition government to be formed with the support of more than 111 MPs.

The Perikatan Nasional (PN) government was formed because of its ability to get the support of about 116 MPs. Out of this, 11 MPs had switched party from PKR to Bersatu.

Without this defection, PN won’t be able to get the support of 116 MPs, only the support of 105 MPs, which was not enough to form a government.

With the provision in place, this would mean the 11 PKR MPs would have to vacate their seat and 11 by-elections would have to be called.

Of course it can be argued that PN can still form the government if these 11 MPs all won the by-elections under the ticket of their new party.

But it can also be argued that in the first place these 11 MPs would not have switched party if they know they will have to lose their seats and contest in a by-election in which their victory is not guaranteed.

Meanwhile the act of a political party to withdraw from a coalition should not be considered as party hopping. When Bersatu pulled out from the PH government, all Bersatu MPs were still members of Bersatu before and after the pulled-out.

Moreover, in a democracy, any coalition is a political pact among political parties with any member of the pact having the right to withdraw at anytime if the member concerned felt the pact has deviated from its original aim and purpose.

Another way to mitigate the negative effect of party hopping is via the novel and creative proposal of Padang Rengas MP, Datuk Seri Mohamed Nazri Abdul Aziz on a party-list based general election (GE) way back in 2020.

Under this scheme, it is the party that is the candidate in a GE, not an individual member of the party as currently practised. At the ballot box, voters will tick the party symbol and logo for the party they want to represent them in a constituency.

The winner will still be based on the first-past-the post (FPTP) system in which the party with the most votes will win the seat. And as per the FPTP system, the party winning the most number of seats will form the government.

At the conclusion of the GE, the winning party of a constituency will then appoint a member of the party to be the MP of the constituency.

If midway through his term, the appointed MP jumps ship to another party, he cannot carry along his MP seat to his new party simply because that seat does not belong to him but the winning party that has appointed him to be the MP.

Moreover, when an MP switches party, the seat does not have to be vacated to make way for a by-election. Instead, the winning party will appoint another individual member of the party as the new MP for the seat.

The beauty about this proposal is not only is the freedom to switch party is allowed but there won’t be political instability because the winning party still holds to the seat via a new appointment of MP.

On top of this, taxpayers’ monies are substantially saved from holding a by-election.

Assuming if this proposal is in place during the Sheraton Move, then there is no need to organise the 11 by-elections for the 11 PKR MPs who switched allegiance to a new party under the earlier proposal of amending the tenure of the term of office of MPs.

One can just imagine the cost of organising 11 by-elections and the hefty saving gained from not organising them.

Even when a sitting MP dies or is incapacitated from performing his duty or loses his MP-ship due to a criminal conviction, there is no need to call for a by-election to replace him.

The winning party will just appoint another member of the party to replace him as the new MP.

In this brilliant scheme, the issue of the mandate of the rakyat given during a GE being stolen after the GE will become irrelevant because the mandate will be with the winning party throughout until the next GE.

According to Mohamed Nazri, a trained lawyer who was also a former de facto law minister, the amendment to the Election Commission Act 1957 to enforce a party-list system, in which voters would elect parties rather than individuals, only needed a simple majority to be approved.

This was unlike the two-thirds majority necessary for amendments to the Federal Constitution.

Mohamed Nazri, however, conceded that his proposal would not cover independent lawmakers, but said that was the risk voters must take in the unlikely event they opted to back one.

He further noted that independent lawmakers were not beholden to support any party even now.

“Yes. You have to live with him for five years. It’s your choice.

“Anyway, when you want to form a government, you vote for the party. How can you vote for individuals? You can’t. The party forms the government. Not an individual,” he added.

Regards,

Jamari Mohtar

Editor, Let’s Talk!

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