AHMAD IBRAHIM KULLIYYAH OF LAWS (AIKOL)

SEMESTER II, 2023/2024

CONSTITUTIONAL LAW II (LAWS 2331)

SECTION 1

WRITTEN ASSIGNMENT

LECTURER’S NAME:

DR. KHAIRIL AZMIN BIN MOKHTAR

PREPARED BY:

SITI NUR RASHIDAH BINTI AMRI 2111178

DEENA ELIN BINTI ZAINAL 2113934

AMEIR HASLAM BIN ZAIFUDDIN 2121337

DATE OF SUBMISSION:
21 JANUARY 2024
 TABLE OF CONTENT

Question………………………………………………………………………………….……….2

Background of Amendment

Examining Anti-Hopping Legislation in Malaysian Politics…………………………...…………2

Overview of the political landscape in Malaysia before the amendments………...……………2-3

Notable Incidents of Party Hopping in the Malaysian Political Context………………….………3

Objectives of the Amendments

The deletion of Article 48(6) and the introduction to Article 49A of the Federal Constitution .…4

Effects of Amendments towards Federal Constitution Pertaining Anti-Hopping Law ….…..…4-5

Anti-Hopping Party……………………………………………………………………………..6-8

Comparative Analysis……..………………………………………………………………………9

Conclusion: Opinions on the Recent Amendments……………………………………………9-11

References…………………………………………………………………………...……….12-13

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Question

Federal and state constitutions have been amended recently to prevent members of legislatures
from changing parties after being elected as representatives. Explain the background and
objectives of the amendments. Do you think the amendment is in consonance with the rights
guaranteed by the constitution and whether it would be able to achieve its objective to ensure
political stability in the country?

1.0 Background of Amendment

1.1 Examining Anti-Hopping Legislation in Malaysian Politics

Party hopping, also known as party switching, party defecting, floor-crossing or carpet
crossing, is the act of an elected representative in Parliament or a State Assembly resigning from
one political party to join another. This can occur for various reasons, such as a clash of beliefs
or interests among politicians. Additionally, party hopping may happen if an elected
representative is expelled from the party they were affiliated with during the election and decides
to join another political party. In simple terms, any instance of an individual moving from one
party to another is considered party hopping, but changes in the coalition status of a party do not
fall under this definition.
According to the Malaysia Institute of Defence and Security (2019), the Anti-Hopping
Law refers to a set of rules and regulations implemented to prevent the widespread occurrence of
party hopping. This legal framework aims to stop elected representatives, who were elected
under a specific political party's banner, from switching to another political party after securing
their contested seat.

1.2 Overview of the political landscape in Malaysia before the amendments.

The defection of 39 Members of Parliament (MPs) in Malaysia after the 14th General
Election (PRU14) raises concerns about the state of democracy in the country. According to the
latest lists of Malaysian Parliament members provided by the Election Commission (SPR)
website, this group constitutes over 17.56% of the total 222 MPs.
The criteria for identifying MPs who have switched parties include leaving their party to

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join another, becoming independent MPs after leaving their party, or actively supporting the
opposing bloc before being expelled from their party. This situation is considered the highest
number of MPs switching parties in over 60 years.
Political analyst Associate Professor Dr. Awang Azman Awang Pawi from the University
of Malaya suggests that compared to neighboring Southeast Asian countries, Malaysia is
grappling with a significant issue of MPs switching parties. This phenomenon reflects a
concerning state of democratic practices, indicating that Malaysia is currently at its lowest point
in nurturing a parliamentary democratic system (Anwar, 2021).
In examining political scenarios in neighbouring countries, there are no reports of
Indonesian MPs switching parties, and in Singapore, there is almost no issue of representatives
defecting. This issue is attributed to Malaysia's less strict laws, where MPs leaving a party are
considered to be exercising their freedom of association, as protected by the Federal
Constitution.

1.3 Notable Incidents of Party Hopping in the Malaysian Political Context

In an unprecedented event, the Pakatan Harapan (PH) coalition-led Federal Government

collapsed in February 2020. This downfall occurred when a group of PKR Members of
Parliament departed from their party to join Bersatu leaders, leading to the withdrawal of the
concerned party from the coalition government. The political landscape witnessed the
commencement of challenging days for the Pakatan Harapan (PH) government and its Cabinet
members, eventually resulting in the government's downfall after merely 21 months in power.
Malaysians were left wondering how such a turn of events could happen.

The incidents took place on the afternoon of Tuesday, February 24, 2020, marked by a
surprising media statement from the Prime Minister's Office announcing Tun Dr. Mahathir
Mohamad's resignation. This announcement was succeeded by a media release from the
President of Parti Pribumi Bersatu Malaysia (Bersatu), Tan Sri Muhyiddin Yassin, officially
declaring the party's departure from the PH coalition. Simultaneously, the Deputy President of
the People's Justice Party (PKR), Datuk Seri Mohamed Azmin Ali, was expelled from his party.

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Ironically, he also officially declared leading 10 PKR Members of Parliament to become
Independent MPs.

The aftermath of these nearly simultaneous and astonishing declarations left the PH
coalition without a majority in the Dewan Rakyat, resulting in the premature end of a
government that had not completed a full term. Later that same evening, the Chief Secretary to
the Government, Datuk Seri Mohd Zuki Ali, issued a media statement, indicating that the Yang
di-Pertuan Agong, Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah, had approved the
revocation of all duties of the cabinet members and administrators (Wajdi, 2020).

2.0 Objectives of the Amendments

2.1 The deletion of Article 48(6) and the introduction to Article 49A of the Federal
Constitution

According to the Anti-Hopping Law Introduced in Malaysia (2022), the recent amendments to
the federal constitution will come into effect on 5 October 2022. These changes include the
introduction of an anti-hopping law, as outlined below:

2.1 (a) Removal of Article 48(6):

The amendment removes Article 48(6), which disqualifies a person from being a member of the
House of Representatives for a period of five years if they resign from their membership. This
deletion allows a member who resigns from the House of Representatives to seek re-election at
any time after the resignation has been made.

2.1 (b) Introduction of new Article 49A on Change of Member's Political Party:

The amendment introduces the new Article 49A, which addresses changes in a member's
political party. According to this provision, a member of the House of Representatives will cease
to be a member, and their seat will become vacant if:

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 (a) Resigns or cease from the political party
(b) Elected as a member of the House of Representatives otherwise than as a member of a
political party (ie: an independent candidate and joins the political party as a member)

2.2 Effects of Amendments towards Federal Constitution Pertaining Anti-Hopping

Law

The change in the law prevents the mischief of politicians from leaping from one party to another
party. If they do, they destroy the voters’ electoral mandate by transferring power from one
group of politicians to another (How Does the Malaysian Anti-hopping Law Work? Can It Be
Manipulated?, 2022). The primary objectives of an anti-hopping law, also known as an anti-
defection law, are generally aimed at achieving the following:

2.2 (a) Stability in Government:

Preventing elected representatives from frequently switching political affiliations helps maintain
stability in government and ensures that elected governments can effectively carry out their
mandates without constant disruptions.

2.2 (b) Preservation of Mandate:

Ensuring that elected representatives adhere to the political party under which they were elected
helps preserve the mandate given by voters to that particular party. It prevents elected officials
from abandoning the party and potentially going against the voters' choices.

2.2 (c) Prevention of Political Opportunism:

Curbing opportunistic behavior among politicians who may switch parties for personal gain,
such as obtaining ministerial positions or other benefits, helps maintain the integrity of the
political process.

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 2.2 (d) Protection of Public Interest:

Safeguarding the public interest by ensuring that elected representatives remain committed to the
principles and policies for which they were elected, thereby aligning their actions with the
expectations of their constituents.

2.2 (e) Prevention of Unethical Political Maneuvers:

Deterring unethical practices such as horse-trading and the manipulation of political alliances,
can compromise the democratic process and lead to instability.

3.0 Anti-Party Hopping Law

‘Party-hopping’ is the practice of elected officials switching loyalty to a new political

party halfway through their term of office. Party hopping is the practice where the elected person
is actually switching their party in the term of their office. This person is halfway and joined a
new political party and thus this will affect the majority. Thus, as this happened governments
were attempting an impossible to maintain their power. However, the implementation of the
Anti-Party hopping law has become one of the tools in maintaining their power in Parliament
either at the State Level or Federal level. Thus, in the extent of party-hopping removes the
government's majority in Parliament, The Prime Minister is legally obligated to resign if the
number of party-hopping legislators results in the government losing its majority in the House.
To conclude, the basic principle of this law is when a person leaves their party they will
automatically lose their seat.

Looking back into the basic principles of Malaysian democracy it is within the federal
constitutional monarchy and parliamentary democracy, which coexist side by side. In a
parliamentary democracy, the people elect legislators to a legislative assembly. They then will
enact laws and make national policy decisions. The people are directly represented by this
parliament. The prime minister will be chosen based on the support of the majority of members
of the parliamentary assembly. In discussing how anti-hopping laws relate to democratic systems
of governance, we should observe the legal implications of establishing and dissolving a
government based on Article 43 of the Federal Constitution. The first clause can be interpreted in

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two ways; which are the Prime Minister will be chosen by the Yang di-Pertuan Agong from
among the members of the House of Representatives, and the prime minister will be chosen by
the Yang di-Pertuan Agong based on someone he believes has the most potential to command
the majority.
In Nordin Bin Salleh v State Assembly of Kelantan [1992] 1, the respondent had been
elected as a Kelantan Legislative State Assembly as he had won the general election. However,
by virtue of Article XXXIA of the Kelantan Constitution which states that the seats of the first
and second respondents who resigned from their political party are to be declared vacant. The
respondent had brought the case to the High Court and alleged that Article XXXIA of Kelantan
Association was ultra vires to Article 10(1)(c) of the Federal Constitution which laid down the
right of freedom of association. In this case, the judge held that the anti-party hopping law of the
Kelantan Constitution was unconstitutional to the right of freedom of association.
However, The importance of the anti-hopping law can be seen in the case of Datuk Amir
Kahar v Tun Mohd Said Keruak [1995] 2, this case was held in Sabah, and in this case, the Chief
Minister was appointed as the head of the government following the state election in1994.
However, his government began to collapse. The dispute arose when the government started to
collapse and a few of his assemblymen lost confidence in him. Datuk Pairin had requested the
first defendant, Yang Dipertua Negeri to dissolve the Assembly but the first defendant withheld
his consent. Datuk Pairin later tendered his resignation as the Chief Minister of Sabah but
without tendering his resignation of the other member of the cabinet. On the same day, the 1st
defendant appointed Tan Sri Sakaran Dandai, the 2nd defendant as the new Chief Minister. The
resignation of Datuk Pairin is deemed to be personal and did not affect the appointment of the
plaintiff as the Deputy Chief Minister. The judge held that the resignation of the Chief Minister
was in effect the resignation of the entire Cabinet or government. From the above mentioned
case, when the anti-party hopping law was not imposed, anybody from the members of the party
could easily switch their party. The majority will become lesser and it will affect the government
as a whole. The Chief Minister will lose his position as he has lost the majority. It is necessary to
impose the anti-party hopping law in this modern era of politics in order to ensure that every
party member will hold the mandate and be responsible with their portfolio.

1 1 MLJ 343
2 1 MLJ 169

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 4.0 Comparative Analysis

As above have specifically mentioned the term of Anti-Hopping Party Law. Let us move
on to the impacts of it in Malaysia, the law plays a crucial role in maintaining a strong and
functioning democratic system. When a stable political environment exists, it will allow for
consistent policy-making, effective governance, and promote investor confidence. Therefore,
understanding the impact of the anti-party hopping law on political stability is important in
ensuring a stable political landscape in Malaysia. On the other hand, Proposals to enact anti-
hopping laws are frequently linked to the need to keep the government from collapsing.
On the other hand, in India, the law that is related to the anti-party hopping law was
enacted in 1985. In India, this law is called an anti-defection law. It is stated under the 10th
Schedule3 of the 52nd Amendment in their constitution. If an independent member of the house
joins a political party after being elected, he will be removed from office. If a member of the
house who has been nominated joins a political party after six months of taking the oath of
office, they will be removed from office. In this provision, they have clearly outlined the process
for disqualifying an elected member for the remainder of his term if he resigned, voted against
the wishes of his party, or remained absent during a critical bill vote. However, the law permitted
political party mergers and splits, with one-third of the party's members splitting and two-thirds
of the remaining party members combined. The reason behind the anti-defection law imposed in
India is to promote political stability in the government. This law had disallowed the members of
their party to just shift to another party unjustly. On the other hand, this law also had the
members of the party become more loyal as they held a mandate given by the government and
chosen by the people. Some people were of the opinion that the anti-defection law in India had
reduced the freedom of expression and speech among its members. However, In the case of
Kihoto Hollohan vs Zachilhu and others 4 The judges had made a discussion in contrast with
the opinion whereas the court had reasonably believed that the anti-defection law prioritizes
political and personal actions over theoretical principles. It was determined that the law does not
violate legislators' rights and does not threaten the basic structure of parliamentary democracy.

3 10 schedule of Indian Constitution

4 Kihoto Hallohan v Zachilhu and others [1992]

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 In conclusion, Both of the countries aim to promote political stability. The Anti-Party
Hopping Law is imposed in order to avoid a vacant seat and to prevent a member of a political
party from changing the party. India has imposed the law much longer than Malaysia and has
more experience on it while Malaysia only enacted the law recently. Nevertheless, there are a
few differences between the Anti-Party Hopping Law in Malaysia and the Anti-Defection Law in
India, especially in the interpretation of the provision. Article 49 of the Federal Constitution is
very specific as it seeks the members of the House of Representatives to switch to another party
while the 10th schedule Paragraph 2 of Anti-Defection Law is much wider in the application. In
Malaysia, the Anti-Party Hopping Law is imposed on any members of the House of
Representatives who left the party and this law does not apply to any of them who change their
party through the merger of their political party with another. In India, Anti-Defection Laws
were imposed on any people’s representative becoming independent by switching parties and
being found guilty of specific crimes or voting against the party.

5.0 Conclusion:
Opinions on the Recent Amendments

The rigorous procedure used to draft the Anti-Party Hopping Bill which was passed in
July 2022 was the result of an in-depth analysis of Malaysia's current needs. Malaysia’s Former
Prime Minister, Ismail Sabri announced on the 10th of October 2022, for the dissolution of the
Malaysian Parliament, in order to make way for the 15th General Election to be held. With such
an announcement, the mandate is said to be “returned to the people”.
Dewan Negara speaker Tan Sri Dr. Wan Junaidi Tuanku Jaafar in his statement from
November 17th, 2023, stated that automatic disqualification from their party membership is
possible if any individual is found to violate the conditions in the Anti-Party Hopping Law. He
also mentioned regarding the suggestions to amend the Anti-Party Hopping Act of 2022, saying
“I believe appropriate action can be taken at the party level by establishing a list of offences that
can automatically disqualify a person's party membership for violating conditions specified in
that list”.
He also stated that the Anti-Party Hopping Bill that was approved back in 2022 to be “the
most suitable in accordance with the interests of the country”. According to him, the mentioned
Bill was considered critical for the country’s political stability since the change of government in

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2018, resulting in the replacement of three prime ministers and over 30 lawmakers switching
parties.
The Anti-Hopping Law (AHL) provisions incorporated in the Constitutional
(Amendment) (No. 3) Act 2022, create a way towards healthier Malaysian politics. It attempts to
denounce a breach of the electorate's confidence, as displayed by the recent 2020 Sheraton
Move, whereby a number of Members of the Parliament defected from the current Pakatan
Harapan coalition, resulting in its extinction. In truth, party-hopping has been common in
Malaysian politics. The formation of splinter parties such as Parti Keadilan Rakyat (PKR), Parti
Amanah Negara (Amanah), and Parti Pribumi Bersatu Malaysia (PPBM) can be attributed to
desertion under conventional Anti-Hopping Law procedures. The difficulty with defection is that
it shifts the balance of power in governments, as shown in Terengganu (1961) and Perak (2018),
where several lawmakers defected and deposed or installed state governments.
However, the AHL still has a basic flaw in the sense that it has the potential to produce
rubber-stamp legislation. For example, if the DAP amends the constitution to remove the escape
clause, the AHL can be utilised as a disciplinary weapon to suppress party dissent. For instance
in India, an anti-hopping law was implemented to assist the party in power to enforce party
discipline. Malaysia's whip system is highly successful, which means there will be fewer
backbench revolts that threaten the current government's supremacy. 5
In addition, the Lawyers of the Corporate Practice of Skrine are of the view that the
Government should be applauded on two counts. The first one being; for striving to end the
downward spiral of party hopping that has afflicted Malaysian politics in recent years, which led
to the collapse of a federal government and numerous state administrations, purportedly for
enormous sums of money or positions of power, and the other one is the inclusion of Section 7A
in Part I of the Federal Constitution (Eighth Schedule) in which it would compel the State
Assemblies to incorporate anti-party hopping provisions into their state constitutions. 6
Furthermore, Clause (4) of Article 71 of the Federal Constitution authorises Parliament to
make legislation to give effect to these provisions in a State. As a result, anti-party hopping laws
that are identical or substantially similar to Article 49A are likely to apply to State Assemblies in

5 Sze Fung Ng, (2022, October 19). Malaysia’s Anti-hopping Law: Some Loopholes to Mull Over.
https://fulcrum.sg/malaysias-anti-hopping-law-some-loopholes-to-mull-over/
6 Kok Chee Kheong and Tan Wei Liang, (2022, August 2022). Malaysia’s Anti-Party Hopping Law : A
Compromised Law?

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the years to come.
Hence, to conclude, the Anti-Hopping Law attempts to establish a political culture that
values electoral outcomes. It should be highlighted that despite its inadequacies, the AHL is the
result of a compromise between diverse political parties seeking the necessary two-thirds
majority. As a result, more work is needed to fill in the gaps and better comprehend the AHL's
practical operations in dealing with Malaysia's volatile political context.

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 References

Anwar, A. (2021, April 1). Paling ramai lompat dalam sejarah. Sinar Harian. Retrieved January
10, 2024, from https://www.sinarharian.com.my/article/131371/berita/politik/paling-
ramai-lompat-dalam-sejarah

Anti-Hoping Law Introduced in Malaysia. (2022, October 31). Rahmat Lim & Partners.
Retrieved January 14, 2024, from
https://www.rahmatlim.com/publication/articles/22605/anti-party-hopping-laws-
introduced-in-federal-constitution-of-malaysia

How Does the Malaysian Anti-hopping Law Work? Can It Be Manipulated? (2022, November
21). Paradox Legal Issue Simplified. Retrieved January 14, 2024, from
https://www.gkg.legal/how-does-the-anti-hopping-law-work-can-it-be-manipulated/

Kok Chee Kheong and Tan Wei Liang, (2022, August 2022). Malaysia’s Anti-Party Hopping
Law : A Compromised Law? Retrieved from
https://www.skrine.com/insights/alerts/august-2022/malaysias-anti-party-hopping-law-a-
compromised-la#:~:text=The%20crux%20of%20the%20anti,be%20introduced%20into
%20the%20FC.&text=having%20been%20elected%20to%20the%20Dewan%20Rakyat
%20otherwise%20than%20as,political%20party%20as%20a%20member.

Legal Turnoil over Perak defections. (2009, February 12). Malaysian Bar, from
https://www.malaysianbar.org.my/article/news/legal-and-general-news/general-news/
legal-turmoil-over-perak-defections

Malaysia Anti-Hoping Law. (2019). Malaysia Institute of Defence and Security. Retrieved
January 14, 2024, from https://midas.mod.gov.my/others/21-anything/intern-article/329-
malaysia-anti-hoping-law#:~:text=An%20anti%2Dhopping%20law%20is,after
%20securing%20the%20contested%20seat.

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Sze Fung Ng, (2022, October 19). Malaysia’s Anti-hopping Law: Some Loopholes to Mull Over.
https://fulcrum.sg/malaysias-anti-hopping-law-some-loopholes-to-mull-over/

Wajdi, D. (2020, February 26). Runtuhnya kerajaan Pakatan Harapan. Sinar Harian. Retrieved
January 14, 2024, from https://www.sinarharian.com.my/article/71497/runtuhnya-
kerajaan-pakatan-harapan

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