Why the anti-hopping law just might be unconstitutional

Murray Hunter


Why the anti-hopping law just might be unconstitutional


JUL 15, 2024





Back in 2022, the Perikatan Nasional government and then opposition agreed to pass anti-hopping laws. The passing of the anti-hopping law led to a modification to several clauses within the Federal Constitution.

The anti-hopping law gave de-facto recognition to political parties. Secondly, the anti-hopping law was an attempt to prevent politicians from changing from one political party to another, as it contravenes the mandate votes gave them at the election that put them into parliament. Consequently, if a member of parliament changes political party, then their seat would become vacant and a byelection called to elect a new member of parliament.

There are three situations where the anti-hopping law becomes relevant:

• the politician ‘resigns’ from his current political party; or
• he ‘ceases’ to be a member of his political party, or
• as an Independent Candidate, he joins any political party.

However, under Article 49A(2) of the constitution, an MP can remain if he/she is expelled from a political party. This is why Bersatu recently modified the party constitution to deem any MP who doesn’t support Bersatu in parliament will cease to be an MP.

The recent case of 6 Bersatu MPs has shown a weakness in the anti-hopping laws. Any seat in parliament must be declared vacant by the Speaker of the Dewan Rakyat.

Consequently, the anti-hopping law is flawed and actually inhibits democracy on the floor of the house. There might be an even larger flaw in the anti-hopping law, it just might be unconstitutional.

Article 43 (2) (a) of the constitution places sovereignty in the MP, not the political party. Clause (a) states “(a) the Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House;”

The clause provides for ‘freedom of choice’ on the part of MPs to express confidence in whoever they feel should be the prime minister. The anti-hopping law takes away this basic right of any MP.

Freedom of association is guaranteed by Article 10 of the constitution. In particular Article 10 (1)(C.) PROVIDES ALL CITIZENS WITH THE RIGHT TO FORM FREE ASSOCIATIONS.

As a consequence, it can be strongly argued that the anti-hopping law in the present state is totally unconstitutional. Unfortunately, the constitutionality of the anti-hopping law has not yet been tested in a court of law.