Anti-hopping law could hinder the formation of a new government

Looks like they will just be ignored

There is much conjecture around that the result of GE15 could be a hung parliament, where no one coalition achieves a simple majority.

Under such a situation, the new anti-hopping provision now embedded within Article 49 of the Federal Constitution could prevent the formation of a new workable government.

Article 49(A) of the Federal Constitution contains stipulations about any change in a member’s political party status.

 “49A. (1) Subject to the provisions of this Article, a member of the House of Representatives shall cease to be a member of that House and his seat shall become vacant immediately on a date a casual vacancy is established by the Speaker under Clause (3) if –

(a) having been elected to the House of Representatives as a member of a political party

(i) he resigns as a member of the political party; or,

(ii) he ceases to be a member of the political party; or,

(b) having been elected to the House of Representatives otherwise than as a member of a political party, he joins a political party as a member.

(2) A member of the House of Representatives shall not cease to be a member of that House pursuant to this Article only by reason of –

(a) the dissolution or cancellation of the registration of his political party;

(b) his resignation from the membership of his political party upon election as a Speaker; or,

(c) the expulsion of his membership of his political party.”

The above has many political implications potentially relevant to the formation of any new government.

To form a new government, the political coalition with the most number of seats will seek additional political parties to join the coalition and/or seek individual members to either join or support the coalition.

Where neither Pakatan Harapan, Barisan Nasional, or Perikatan Nasional don’t have enough members to achieve a simple majority, they will seek support from the Sarawak and Sabah based groupings. However, GPS in Sarawak has already stipulated that are not prepared to work with Pakatan Harapan. Should Pakatan have the numbers that many polls are suggesting, then GPS support for BN or PN would not give either coalition a simple majority.

The other option is for individual parties to break away from an existing coalition and join another. UMNO could join Pakatan, or PKR could join with UMNO and PAS, or BN could join with DAP, etc. However, none of these combinations would be acceptable to some members and their voters, thus leading to an uproar.

This means the only way to break the deadlock would be to seek the support of extra members through defection, or some other pledges of support for a prime ministerial candidate.

This will potentially run up against a number of issues with Article 49(A).

If whole political parties switch allegiance to another coalition, all the party members may be caught out by Article 160 (2) of the Federal Constitution. Article 160(2) defines a political party to include a coalition of parties. Thus under Article 49 (A), any members who join another coalition with their political party would trigger a seat vacancy.

If an MP leaves his political party to join another coalition, like after the last general election, this would trigger Article 49(A), thus creating a vacancy. In addition, if an independent candidate wishes to join a coalition after the election, Article 49(A) would prevent the member doing so.

What will make the anti-hopping law even more cumbersome and complex is that the Speaker of the Dewan Rakyat will have immense power and influence over what actually happens. Under Article 49(A) all discretion is left to the Speaker, as to whether any vacancy exists within the parliament.

Situation more ambiguous before parliament convened and speaker elected

The situation is even more complex before MPs have been sworn in and there has been no speaker. Technically Article 49(A) doesn’t apply to non-members of parliament. In addition, without a Speaker, there is no person designated to declare seat vacancies. Thus, Article 49(A) becomes irrelevant.

However, this doesn’t mean the law can become retrospective, and be applied after the parliament is convened. Discretion in the hands of a partisan Speaker could be dangerous.

Thus the anti-hopping law can become a political tool, rather than a legal remedy. What was intended to be a noble law preventing politicians switching parties and betraying electors, could become an albatross around Malaysian democracy.

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