Anti Hopping Law Case of Nordin Salleh PDF

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PRESERVING MALAYSIA’S DEMOCRACY: THE CASE FOR OR AGAINSTANTI-HOPPING LAWAn Anti-Hopping Law Is Legally Possible to Be Legislated in Order to Preserve DemocracyThe proposal to pass an anti-hopping law is often associated with the necessity of preventing the collapse of the government. Contrastingly, ...

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070 PRESERVING MALAYSIA’S DEMOCRACY: THE CASE FOR OR AGAINST ANTI-HOPPING LAW

An Anti-Hopping Law Is Legally Possible to Be Legislated in Order to Preserve Democracy The proposal to pass an anti-hopping law is often associated with the necessity of preventing the collapse of the government. Contrastingly, the crumbling of a government is not the light strived behind the notion of wanting an anti-hopping law. Democracy itself cannot prevent a government from falling, a sturdy government depends on the political maturity in raking political strategies by the law and acquiring the trust of people they wish to represent. If we go back to the main idea of democracy, it deals with the procedure of acquiring decisions with almost consensus or majority, the freedom of choosing, the concept of willingness and the perseverance of fairness at all level. Therefore, for as long as a law can preserve these conceptions, it can preserve democracy and for that it is a need rather than a futility. Ergo, in deciphering the viewpoint of inaugurating an anti-hopping law, many aspects are to be considered. Article 10 of the Federal Constitution is the main legal prospect that will allow for antihopping law to be passed. Other than having the freedom of speech, expression and association enshrined in the supreme law of the land, the provision also comes with a proviso. Article 10(2) of the Federal Constitution allows the Parliament to restrict certain freedom, subjected to the law, in which in the area of anti-hopping it will be the freedom of association. This further denotes that the freedom in the constitution is not absolute.

Democracy system in Malaysia The cardinal practices upholding democracy in Malaysia are parliamentary democracy and federal constitutional monarchy, which flow in a parallel stream. Parliament is the most important institution in a country which practises the principles of democracy. A parliamentary democracy is a system of government in which citizens elect representatives to a legislative parliament to make the necessary laws and decisions for the country. This parliament directly represents the people. One of the pivotal parts of a parliamentary democracy is the role of a Prime Minister, who is first elected as a member of parliament, then elected as Prime Minister by the other members of the parliamentary legislature, acquiring majority support. 1

070 Nevertheless, the Prime Minister remains a part of the legislature and as the legislative branch makes the laws, thus the Prime Minister has a hand in law-making decisions. From the assignation of the Prime Minister, the cabinet and so the government is formed. Addressing the relation of anti-hopping law to the democratic system of government, we shall first look into the legal prospect of forming and collapsing of a government entrenched in Article 43 of the Federal Constitution. The first limb of the provision can be summarised into two folds which firstly, the Yang di-Pertuan Agong shall appoint the prime minister from among the members in the House of Representatives. Secondly, the Yang di-Pertuan Agong shall appoint a prime minister who in his opinion is likely to command the majority. “Command majority”, this term is expounded to be as the individual support of the members of the house in which this procedure is a rudimentary point of argument of the need to establish an anti-hopping law. Acquiring the command of majority will make a government rise whilst losing majority in the House of Representatives will lead to an inevitable downfall. The law elucidated in Article 43(2) subtly made it clear that political party actually has nothing to do with proffering majority support, thence defection and switching political parties is by right allowed under the law. However, it is not in my field of vision that provided that an action is allowed under the law, then it constitutes rightness. In positivist view of Augustus Comte, a law can be unjustifiable and it is not within the breadth of obligations of an authority to take morality into account. Turning a blind eye by adapting the draconian positivism into allowing political crossovers allow the opposition, people who are not favoured by the citizens, to be in the government. In this liquidity of interpretation of the giving provision, the integrity of one representative is contentious as to the miles a person could go to possess a political power. To further understand the rage behind the need of an anti-hopping law in order to respect Malaysian democracy, it is in the best interest for us to descry into the value and sentiment of electoral process in Malaysia. Election constitutes the essence and basis of democracy in Malaysia before a government is established. This first step to having a government is enshrined in Article 114 of the Federal Constitution whereby the citizens may exercise their rights to vote in General Election, choosing their representatives in the House of Representatives and State Legislatures. The General Election is executed at a level of two folds, national and state level. Provided the seating in the House of Representative is a total of 222, the party who wins the majority seats will form the government whilst the other will remain as opposition.

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070 Turning the page into the perspective of the value of an election process, it is disputably notable that the transparency and sanctity of election is exposed to malpractice. Scrutiny measures taken with the formation of Election Committee to assure each rightful person in Malaysia, that democracy in election is respectfully upheld. This leads to a common notion that the votes given by the people, is the trust they put on who they find fits to govern the country based on one’s’ very own judgment. None except one in the feeble-mindedness cannot infer that the practice of party hopping for the sake of power gaining like a political chess game, is not a mockery to Malaysian democracy and voters’ trust.

Status Quo: The Need of Anti-Hopping Law

Progressing after the understanding of the sentiment behind electoral process and democracy, the political stability in Malaysia is now under the spotlight. In 2020, political instability emerged when a new government of Malaysia needed to be formed without holding a General Election due to the pandemic of Covid-19. The ‘Sheraton Move’ leaves a rooted impact in history whereby politicians of the collapsed government and the opposition swung into other political party, forming the new government. The detestable action of party hopping evades the purity of the winning party which formed the new government. In the eye of the law, it is not a prohibition for politicians to change from one party to another. For this law to be allowed, Malaysian democracy is degrading as the nation gloomed in the devaluation of their votes as any of the politicians may become a part of the ruling party even without winning the trust of the people. In several notable cases, the issue of the validity of party hopping been given the spotlight, which includes the constitutionality of enacting an anti-hopping law. In Abdul Karim Abdul Ghani v Legislative Assembly of Sabah [1988],1 an anti–hopping law was passed by the Sabah State Assembly in 1986 and was upheld by the courts. However, the decision was later overruled in Nordin Salleh v Dewan Undangan Negeri Kelantan [1992]2 whereby anti-hopping law is prohibited in Malaysia. In regard to the controversial situation of party crossover of Musa Aman’s case in 2018, quoting the commentary of Professor Shad Saleem Faruqi, “there have not been any decisions by the apex court in Malaysia, the Federal Court, that may be regarded as being in disagreement with the Court of Appeal’s decision in Musa’s case. The Court of Appeal’s decision is now the

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1 MLJ 171 1 MLJ 343

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070 law of the land and it opens the door to less stable governments given the practice of party hopping that is prevalent in Malaysian politics”. 3 I conceded with the commentary as it is immensely true that the countenance of party hopping exposed our democracy to a disrespectful political situations while giving an aperture as to the abuse of power. Corruption is incumbent as one may go to such an extent to be in the winning party or to form a scheme into forming a government and to be in power. Public Interest, Democracy & Freedom: The Stumbling Block of The Case Nordin Salleh Following the rule of stare decisis, the law that prohibits anti-hopping law from being passed is precedented from the case of Nordin Salleh v Dewan Undangan Negeri Kelantan (1992). The respondents won the general election at state level and were elected members of the Kelantan State Legislative Assembly. However, pursuant to Article XXXIA of the Kelantan Constitution, the State Legislative Assembly of Kelantan passed a resolution that the first and second respondents, who had resigned from the political party for which they stood and were elected in the elections, had ceased to be members of the legislative assembly and their seats were declared vacant. Following the incident, the respondents brought an action in the High Court seeking a declaration that Article XXXIA of the Kelantan Constitution was ultra vires to Article 10(1)(c) of the Federal Constitution which enshrined the fundamental right to freedom of association. Quoting the judgment of the case, “you can associate, you can disassociate, you can reassociate, the Federal Court conveniently forgot that the right to freedom of association is subject to morality”. Upon arriving at the decision, the court further elucidated the interpretation of morality which extended to political morality. Based on the judgement of Abdul Hamid Omar LP and Gunn Chit Tuan SCJ, it was held that the anti-hopping law in Kelantan was unconstitutional on the ground that the law violated the cardinal rights to freedom of association in Article 10(1)(c). On top of that, the anti-hopping provision was procedurally ultra vires as fundamental rights can be restricted only by the Parliament and not State Legislative Assemblies due to the literal interpretation of Article 10(2). The decision and ratio of Nordin Salleh indeed compliment the implied derivation of Article 43 of the Federal Constitution. The judgment on the power to restrict freedom is reasonably sound and indisputable but the decision of upholding “political morality” is 3

Shaad Saleem Faruqi, Party hopping immoral, says Law expert, 15 September 2019, at http://www.dailyexpress.com.my/news/140506/party-hopping-immoral-says-law-expert.

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070 exasperating. Law evolves from time to time, as hard as it can be but a precedent can always be challenged. There is no point of rigidity in expanding a law if it tarnishes the dignity of democracy. In my deferential view, the point of “political morality” is still ambiguous as to what extent this country needs to let a mischief law remain standing in the name of morality and freedom. The idea that anti-hopping law is putting a representative in a “prison” is erroneous because the betrayal to citizens’ votes, election and democracy is ironically more immoral. A man is free to associate, but not to an extent where an erosion of accountability is allowed. An anti-hopping law preserves democracy as one representative of people is responsible for their way of politics. People’s vote and winning a general election will not appear as worthy in their eyes if with or without winning, there are chances in the mischievous loophole that they can be a part of the government through a backdoor hopping. The focal point of the discussion of this case lies on the underlying difference between “freedom of association” and “political immorality” of betraying the trust of the voters. Despite being guaranteed with fundamental liberties, the freedom is not absolute and subjected to certain restrictions whereby an anti-hopping law may legally be possible to be a restrictive law towards the freedom of association. Article 10(2)(a) of the Federal Constitution provides that ‘Parliament may by law impose...’, which in the plain reading will constitute that the restriction to Article 10 can only be made by the Parliament and only the Parliament can determine whether the restriction is within the ambit of Article 10. The freedom of speech, assembly and association provided under Article 10(1) is not absolute hence the restrictions can be imposed under Article 10(2) where the Parliament may impose restrictions as it deems necessary or expedient. However the power of Parliament is not absolute as the restriction must fall within the parameters in clause (2)(a). In Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010],4 Gopal Sri Ram JCA propounded that the proviso and restriction in Article 10(2)(a) must be read restrictively, hence, the word ‘reasonable’ and ‘restriction’ shall be read together to qualify the broadness of the restrictions toward fundamental liberties. However, the court in Nordin Salleh departed from the case of Sivarasa Rasiah and ratioed that the word ‘reasonable’ is not to be read with ‘restriction’, but with ‘necessary and expedient’. It is justifiable for anti-hopping law to be in the scope of necessary and expedient as it is to preserve democracy, and to maintain political stability through trustworthy formation of government following an electoral process. The decision in Nordin Salleh subtly favours ones’ personal freedom of association to practice party crossovers over democracy and so the public opinion, while there is possibility 4

3 CLJ 507

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070 and power to restrict the freedom. If a utilitarian view can be implied, greater goods will always prevail. I believe preserving Malaysia’s dignity as a democratic country by respecting the choice and voices of people should prevail. As hard as it may seem, and a high level of political maturity is needed to acquire a 2/3 majority to pass this law, anti-hopping law is needed to circumvent political greediness and unaccountability.

Anti-Hopping Act: Model of Relative’s Study In the spectrum of hope to establish an anti-hopping law in Malaysia, the effectiveness of how an anti-hopping law can preserve democracy can be confirmed through a comparative analysis from other democratic countries that practices this law. The Anti-Defection Law 1985 in India provides that a person can be disqualified from being the member of Parliament if they voluntarily giving up the membership of his original party.

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The same law of anti-hopping also can be seen in Singapore whereby Article 46 of Constitution of the Republic of Singapore provides for the tenure of office of members of Parliament. The two limbs of the provision stipulates that “every Member of Parliament shall cease to be a Member at the next dissolution of Parliament after he has been elected or appointed, or previously thereto if his seat becomes vacant, under the provisions of this Constitution” and “The seat of a Member of Parliament shall become vacant if he ceases to be a member of, or is expelled or resigns from, the political party for which he stood in the election Analysing the anti-hopping law in India and Singapore, it is plausible that the freedom of association is not stripped by law, whilst democracy is still upheld. This is because members of Parliament in both countries are free to join any political party they think fits their vision but if they choose to leave their original party, the seat is vacant. 6 With or without them hopping into another party, leaving their primary party will result in vacancy of their seat. Meaning that, upon joining the new party, they need to be re-elected. It is worth noting that democracy is evidently upheld as the representatives need to be accountable for the votes of people in the general election. Introducing an anti-hopping law includes the consideration of balancing the need to safeguard political morality through anti-hopping law and the necessity to allow Members of the legislature to act on their conscience. In Datuk Ong Kee Hui v Sinyium Anak Mutit

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G.C. Malhotra (2005), Anti–Defection Law in India and the Commonwealth at https://eparlib.nic.in/bitstream/123456789/58674/1/Anti_Defection_Law.pdf 6 Hafiz Hassan, Anti-party hopping law is not futile, New Straits Time, 2 September 2021, at https://www.nst.com.my/opinion/letters/2021/09/723735/anti-party-hopping-law-not-futile

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070 [1981],7 the respondent contracted with his political party to donate his allowance of being a member of Parliament to the party and not to go against the party and its interest. Failure to abide will result in his seat in the Parliament to be vacant. In the light of the judgment of Tun Salleh Abas FJ, such agreement is not illegal and permissible. Adopting this case into finding the common ground between allowing one representative to carry their duty whole preserving democracy through anti-hopping law, it is notable that the political party itself must abide by certain guidance at federal level, to prevent the party from clasping their members as prisoners and to act unjustly. One may change their political party after leaving their seat vacant and run a by-election before they can regain their seat such as in Penang State Constitution Enactment (Amendment) Bill 2012. The bill which was inaugurated by the Penang State Legislative Assembly have the abstraction of balance between political morality and the representatives’ freedom to change party whilst upholding democracy. Under Article 14A(1) of the Constitution of the State of Penang (Amendment) Enactment 2012, a member of the assembly shall vacate his seat if: (a) Having been elected as a candidate of a political party, he resigns or is expelled from or ceases for any reason whatsoever to be a member of that party or (b) Having been elected as an independent but later joins a political party. However, following the case of Nordin Salleh, the decision to uphold Article 10(1)(c) of the Federal Constitution regarding Malaysians’ freedom of association prevail which presided this amendment Bill to not being passed.

Conclusion

The Penang anti-hopping bill is indeed similar to the comparative country of India and Singapore which practice anti-hopping law. This can legally be incorporated and introduced in Malaysia to pass anti-hopping law at federal level by following the framework of the Federal Constitution under the federal and concurrent list, provided that it guarantees the preservation of democracy whereby only rightful leaders will form a government. There is no point in preserving freedom of association if the preservation being a loophole in disguise, delving a leeway to escape accountability from bearing a decent political values.

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1 MLJ 37

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