Anti-hopping law is not a novel concept in the country. There have been a total of 3 states that have introduced anti-hopping laws in the state constitutions spanning back to the 1980s. Sabah was the first state in Malaysia to implement an anti-hopping law in the year 1988. However, it was later abolished in 1995 after it has been found to contradict the Federal Constitution.
The second state that has implemented the anti-hopping law is the state of Kelantan in the year 1991. However, the anti-hopping law was later challenged in court after 2 state assemblymen were forced to relinquish their position after leaving their party Semangat 46 to join UMNO. The APEX court ruled that the Kelantan State Constitution restricts the 2 state assemblymen from their right of association as guaranteed by Article 10(1)(c) of the Federal Constitution. The anti-hopping law in the state is thus struck down and is considered null and void.
This makes the case against the anti-hopping law clear however the judgment continues to state that Parliament may enact a law to impose any restriction on the exercise of the fundamental right of a citizen to associate. This essentially means that an anti-hopping law can be constitutional if it is passed in Parliament. Many legal experts have warned however that albeit this is possible, there is no certainty that the law will not be challenged in court in the future. As such, the most prudent approach to implementing such a law is to first amend the Federal Constitution which will require a two-thirds majority in Parliament.
On top of the amendment on Article 10(1)(c), Parliament may also need to amend Article 48 of the Federal Constitution on disqualification for membership of Parliament. The amendment would be to include party hopping as one of the acts that can disqualify the membership of a Parliamentarian. Further, there is also the need to remove the disqualification provision in Article 48(6) of the Federal Constitution. This would allow for the Member of Parliament that is stripped of the position to re-contest under a different political party banner without needing to wait for 5 years.
The only state that still has an anti-hopping law in its state constitution is the state of Penang. It was introduced in the state constitution in the year 2012 despite the Federal Court’s precedence set in Kelantan in 1992. The state, however, has yet to invoke the law to vacate the seats of 4 state assemblymen that have switched their allegiance to Perikatan Nasional recently. This is despite Penang chief minister Chow Kon Yeow’s previous claims that he is open to the idea for the state anti-hopping law to be challenged as it would allow for the landmark ruling in Kelantan to be revisited by the Federal Court.
In conclusion, introducing the anti-hopping law either at the federal or state level without first amending the Federal Constitution will inadvertently open the possibility of it being legally challenged. The amendment of the Federal Constitution needed would not only be Article 10 of the Federal Constitution but also Article 48 that governs the disqualification of members of Parliament.
The debates surrounding the proposed anti-hopping law are expected to continue gaining momentum in the country. Especially so if the government and opposition alike are serious in their attempt to collaborate to pass this law that does not only go against the spirit of the Federal Constitution but will be used to reduce Parliament as a rubber-stamping institution for political parties.