Lawyers for Liberty refers to the government’s move to table constitutional amendments purportedly to enable future legislation to prevent members of parliament from hopping between political parties.
Since the fall of the Pakatan Harapan government in February 2020, there has been a clamour for an anti-hopping law, touted widely as a kind of panacea for current political ills.
The bill for the government’s proposed amendment seeks to add a new provision 3A under Article 10 of the Federal constitution that would allow for the enactment of federal law to restrict freedom of association in relation to membership in a political party by members of parliament and state assembly members.
This would have the effect of nullifying the protection of freedom of association contained in Article 10(1)(c) for elected representatives. There is no point in pretending that this is not a serious derogation of the constitutional principle of freedom of association.
This proposed amendment to the constitution is bereft of any concrete definition; it does not specifically address “anti-hopping” but widely refers to party membership of MPs and state assembly members. The vague wording of the proposed provision opens it up to abuse, which would critically undermine parliamentary democracy.
If the bill is passed, any government of the day could by simple majority enact laws that disqualify MPs on any technicality or grounds; which would be particularly harmful to the opposition, who would then be at the mercy of the majority.
Whilst there is a need for stability in government, it is crucial to safeguard the independence of elected representatives. Anti-hopping laws would inevitably cause MPs to vote along party lines, despite their principles or the wants of their constituents for fear of repercussions to themselves. It is naive to imagine that MPs are not driven by a need to further their careers or be eligible for re-election.
India, for example, which introduced anti-defection legislation in its own constitution in 1985, suffers from a lack of independent debates in Parliament as MPs fear going against the party whip, as it would be counted as an act of ‘defection’ under the law. It has also failed to outrightly prevent party defections, as there were instances where several state governments throughout the years collapsed due to exploitation of legal loopholes within the law itself.
Clearly, enacting an anti-hopping law is not the panacea that people expect it to be. This dangerous proposed bill by the government should finally wake everyone up.
We must not forsake democratic principles simply for the sake of chasing an elusive stability.
We are also astonished that some political leaders have in recent days suggested it is better to just pass an anti-hopping law quickly and “fine-tune” it later. To tinker with the Constitution or with freedom of association in that cavalier manner is irresponsible and a recipe for catastrophe.
The government should retract this disastrous bill for a constitutional amendment to the sacrosanct provisions of Article 10; let the rakyat at the ballot box be the sole arbiter of the actions of their elected representatives. If this bill is tabled on Monday and is passed, it would be an unprecedented act of political hara-kiri by members of parliament.
Zaid Malek is chief coordinator of Lawyers for Liberty