Party-hopping is not a new political phenomenon in Malaysia. It causes the malfunction of the democracy of our country by depreciating the value of democratic votes. People's voices are not respected, nor does it contribute to the formation of a stable government. Under the current Malaysian electoral system, three circumstances could be considered party-hopping, regardless of whether it occurs at the federal or state levels. First, when an elected nonpartisan politician joins a particular political party or coalition. Second, when an elected politician or group of elected politicians who initially were members of Party A subsequently join Party B. Third, when a political party or several political parties change to another political coalition. It is crucial to apprehend the interpretation of party-hopping conduct to impose an effective and practical law to curb this unhealthy political  phenomenon.  

 

One of the famous examples of party-hopping in Malaysia can be drawn from the "Sheraton Move", a backroom political manoeuvre to topple the Pakatan Harapan government. As a result of the frequent switching of political allegiance by elected politicians, many parties in Malaysian society have continuously urged the government to consider enacting the anti-party hopping law to strengthen political stability. On 13 September 2021, the Malaysian  Parliament agreed to table an Anti-Party Hopping Bill, preventing elected representatives from defecting to another political party to encounter the long-lasted political turmoil. In fact, the anti-hopping law is not a legal innovation. To elucidate, Article 46 (2) of the  Constitution of Singapore demands their members of Parliament to vacate their seats if they resign or get expelled from their party to curb party-hopping. 

 

However, proposing an effective anti-hopping law in Malaysia is not easy. The effectiveness of the anti-hopping law can be analysed in three dimensions. First, by Article 10(1)(c) of the Federal Constitution, all citizens have the right to form associations. Therefore, the elected representatives shall enjoy the same citizen's right to join their preferred political party in tandem with the provision above. In relation, Malaysian  High Court in Dewan Undangan Negeri Kelantan v Nordin bin Salleh & Anor [1992] 1 MLJ  697 also declared that the anti-hopping law stipulated in Kelantan State Constitution was unconstitutional. This was due to its contradiction with Article 10(1)(c) of the Federal Constitution. Nevertheless, the right to form associations is not absolute where it is subject to Article 10(2) of the Federal Constitution, which allows the Parliament to restrict such right by passing a  federal law if it destructs the interest of the security of the Federation, public order, or morality. It appears that the drafter of our Constitution anticipated the need of future Parliament to impose restrictions on such a right by passing a federal law when it is deemed necessary to maintain the security of the Federation, public order, or morality. Hence, the purpose of the anti-hopping law becomes a cardinal issue. If it is enacted to maintain political stability,  whether such purpose falls squarely within either one of the three reasons under Article 10(2)  of the Federal Constitution, i.e., the interest of the security of the Federation, public order, or morality. This would allow the Parliament to enact anti-hopping law under Article 10(2) in restricting the right to form associations? In other words, the purpose of the anti-hopping law is cardinal in examining its effectiveness. Suppose the purpose of enacting anti-hopping law does not fall under any of the three valid reasons under Article 10(2) for the Parliament to enact such a law which would eventually restrict the right to associations. In that case, it is ineffective and could be rendered unconstitutional. If it does, then the judgement in Nordin Salleh's case could be distinguished accordingly since the applicant sought to apply anti-hopping by enforcing the State law provided in the State Constitution and not federal law.  

 

Second, the influence of the doctrine of the party whip. The passing of anti-hopping law will implicitly cause the doctrine of party whip to become impliedly more powerful. Once a people's representative is elected, he cannot withdraw himself from the political party. Suppose a member of Parliament is strictly bound to his political party, which is, at the same time, also the governing party. In that case, it would cause the formation of a rubber-stamp Parliament in Malaysia due to the enforcement of anti-hopping law. The governing political party or coalition could technically amplify the utilisation of the doctrine of party whip to obtain majority votes in passing a law in Dewan Rakyat. It ties the hands of members of the representative to associate with another political party with the same political vision. The political vision of a political party is not perpetual; it changes from time to time. Moreover,  people tend to analyse the effect of anti-hopping law solely on mala fide party-hopping, but how about if a Member of Parliament switched his political allegiance in bona fide, due to the change of the political beliefs, aim, and vision of his initial political party? Although this rarely happens, lawmakers cannot disregard the right of association of the aforementioned people's representatives.  

 

Third, the anti-hopping law may cause the existence of hung Parliament to remain unsolved. Hung Parliament refers to a circumstance where no single political party or coalition wins a majority in the Dewan Rakyat. When this circumstance happens, it leaves the Malaysian political coalition that holds the most seats to pass the simple majority with few options. First, attempt to create a new political partnership or enlarge the existing one by inviting another party or other representatives to form a government. However, with the enforcement of anti-hopping law, this could not be done as people's representatives or a political party could not switch its political allegiance accordingly to prevent hung Parliament. Second, negotiate with another party or parties to support them by utilising the "confidence and supply" arrangement. With this arrangement, other parties, technically not 'hopping' to another coalition, would agree to support the government in any votes of confidence in the Dewan Rakyat. Although it seems applicable to prevent party-hopping inconsistent with the purpose of anti-hopping law, it leaves government stability in question.  

 

Moreover, it is also reckoned that the impediment in upholding democracy in Malaysia lies in the electoral system, i.e., the first-past-the-post system. Some scholars also suggested that the electoral system as a whole should be reformed to a party-list system. However, this will alter the spirit of the Federal Constitution, which provides the former system to be our electoral system. 

 

In conclusion, party-hopping cannot be left unsolved as it would be a thorn in the flesh for Malaysia to maintain political stability. Hence, an effective anti-hopping is needed to curb the unhealthy party-hopping phenomenon. As the effectiveness of the anti-hopping law would be altered by the three reasons I have expressed above, amendments could be made accordingly.