LETTER | “The country has been suffering from two things during this rainy reason. The one is the flu. The other is the increasing cacophony of frogs in the night. This proliferation of amphibian love calls has had an odd effect on the local politicians. Some opposition politicians, it seems, have turned amphibian. Where is this all going to lead us? Should we outlaw it?” (excerpt)

The greatest number of croakers, leaping about in abandon, appear from East Malaysia: for the moment. There are a million boring conspiracy theories for these sycophantic migrations. Most of these are written by the secret pens of the previous regime.

None of this matter.

In early 2008, Peter Yew wrote that party-hopping should be made illegal. He uses a ‘coffee shop’ analogy. You feel like a cuppa. Which shop do you go to? The one with the most patrons. The winner syndrome.

He asks: Had you known your candidate would change sides, would you have voted him in? That is an appeal to ethical behaviour. That may not be the right question to ask. Some people always like winners. They don’t like losers, no matter how virtuous. They don’t mind winners, no matter how evil. They want to be on the winning side. It is, unfortunately, in their nature.

When Muhyiddin Yassin abandoned the Umno ship, his colleagues called him a rodent. Yet blindly, like rats following the Pied Piper, they too fell over the cliff – along with the Piper. Now at sea, they cast about wildly.

Limpet-like, they’d latch on to anything. Or anybody.

What does matter is whether leaping from party to party – from loser to winner – is ethically correct; and whether it is illegal. And if not, whether it should be. Why did you vote for your candidate? There are a hundred reasons. Don’t give us that high-falutin' story about the king and country. That was before and shortly after Merdeka.

As the years passed, we have all been trained to vote for race, religion and party. For six decades not everyone voted for the betterment of the nation.

If they did, they were always in the minority. Except in 14th general election. Two paths appeared in the political jungle. One was the well-lit, and oft-trodden. The other was unknown. The people took the cleft no one had trodden. They stepped over a cliff. To use a popular phrase, “They leapt from the lion’s head”.

It was a leap of faith. Yet the frogs seem to require no faith. The only faith they need seems to be an assurance of their own survival. That is selfish. And being selfish is not being ethical. In early June this year, a Kenyan, William Kingi wrote a piece on this very subject. He said that a party-hopper, “… is not driven by solid values or principles”.

Which brings us right back to the question of what we expect of our MPs

Some MPs seem to forget that they represent us – you – me –your family –mine. When we cast our votes, our candidates become the repository of our trust. And our hopes. And all of our aspirations. During their campaigns, they make all sorts of promises. They guarantee positive changes. They assure us they’d act in our best interests.

The election comes. The moment they win, they fall prey to the highest bidder. In 1994, Pairin Kitingan faced an Olympian struggle with BN.

With the help Haji Mustapha Harun, he secured a wafer-thin, two-seat majority. Fearful of defections, he besieged the Governor’s gates - for 36 hours. Eventually, the gates swung open, he was allowed entry. Pairin formed the government. Weeks later croaking was heard everywhere.

There was an amphibian migration to BN. What happened next is well-known.

It is not important that Pairin, or PBS, lost. In those days, the temptations were of a material kind. What is happening post-GE14 is not the same.

It is the “need for the winner” syndrome. Elected representatives who suffer from selective amnesia Party-hoppers should not be allowed to represent the people. And so, it is time we bring in a new law – one that declares that once a person jumps party, his or her seat falls vacant.

Can it be done? Well, Kelantan tried to ban party-hopping. The courts held that that was “unconstitutional”. This was because, it was said, of Article 10 of the Malaysian Constitution which allows every person –including our salamander politicians – ‘freedom of association’. This meant they could hop from one party to another with impunity.

Article 10: Parliament can enact anti-hopping Laws in the 'interest of public order or morality' Look at Article 10. You need not be legally trained to understand it:

Article-10: Freedom of speech, assembly and association.

(1) Subject to Clauses (2), (3) and (4)—

(a) every citizen has the right to freedom of speech and expression;

(b) all citizens have the right to assemble peaceably and without arms;

“(2) Parliament may by law impose...

(c) on the right conferred by paragraph (c) … such restrictions as it deems necessary or expedient … 'in the interest of … public order or morality'.

There you have it. So, quite plainly, Parliament can pass a law – in the interest of ‘morality’ – restricting the right to hop. Some experts disagree with this view – Nordin’s case They point to a 1992 Supreme Court case.

In 1992, two members of PAS, having won the state seat in the Kelantan state legislative assembly, resigned from PAS. They became members of BN. Nordin Salleh was one. The Kelantan state legislative assembly was outraged. It passed a resolution vacating his seat. This was because ruled the assembly, Nordin had resigned from a party from which he had been elected. Therefore Nordin “ceased to be a member of the state legislative assembly”.

So Nordin’s seat was declared vacant. Nordin took the assembly to court.

The High Court agreed with the state assembly. The judge held that despite the constitutional right of freedom of association, the state assembly could declare his seat vacant. The Supreme Court reversed the High Court's ruling. It ruled that Nordin had the constitutional freedom to hop. Since then, the Nordin case has become a charter for every party-hopper.

Does the constitution need to be amended to enact anti-hopping laws? Some legal experts seem to think so. Is that right? A number of things are wrong with this view. First, the Supreme Court’s decision in the Nordin case did not say that Parliament cannot enact laws to restrict the right to hop. Our Supreme Court judges were not asked that question.

Second, the Nordin case only dealt with what the Kelantan state assembly had done. The Supreme Court decision could be right because, there, it was the state assembly that had passed “a resolution”. Third, in Nordin’s case, unlike Article 10(3), Parliament itself had not “imposed” any such 'restriction’ by an act. Nor had the Kelantan assembly passed any enactment.

Fourth, the Constitution openly allows Parliament to impose such a restriction, … ‘in the interest of … public order or morality’. How can that provision in the constitution be wrong?

A party-hopper is unethical. He breaks promises. He breaches voters' trust. So he ‘acts against morality’. So such a law can be passed without breaching the constitution.

There is a final reason. It has to do with the state assembly of Jammu and Kashmir, India. Mian Bashir was a member of the National Conference Party. In a 1977 election, his party won the state election and formed the government. Then Mian Bashir resigned from the National Conference Party. He joined an opponent, the Congress (I) Party. What was to become of the seat he occupied in the state assembly?

Stalwarts from his former party demanded that he be disqualified from holding a seat in the state assembly. They pointed to India's anti-party-hopping act. They argued that under it, Mian Bashir had been disqualified. The speaker referred the dispute to the court. Mian Bashir did not sit still. He himself filed court action. He asked the court to declare that sec. 24-G had violated his constitutionally entrenched right to associate with whomsoever he liked.

The Supreme Court of India ruled that the anti-hopping act did not violate Mian Bashir’s right to freedom of association. This was because (almost exactly like Malaysia had a ‘restriction clause’ in Article 10(2)(c)), India had also placed a limitation to the right of association in its Art. 19(4).

That was that for Mian Bashir. He had to vacate his seat. The judges' comments in his case are interesting: In making his ruling, the Acting Chief Justice of India said that in upholding the validity of the (Act) he had placed great stress upon …

“… the post-independence history of prevalent political defections and their baneful effect, in that they had threatened the functioning of parliamentary democracy in many parts of the Indian subcontinent.’

“… these political defections were not because of genuine prodding of conscience but because of personal aggrandisement and rank opportunism and had thus become a pernicious form of political corruption threatening the functioning of parliamentary democracy .... It was against the backdrop of these events, ... the impugned legislation [had been] enacted into law.

“… Viewed (from) this background, … the object of the section is (not) ... to curb dissent but ... to eradicate the evil of political defections in the state. …”

Our Supreme Court in the Nordin case said that the Mian Bashir case “did not apply” in Malaysia. This cannot be right. Look at our Constitutional Article 10(2). It gives Parliament the right to enact laws to limit the right of association, if –at the risk of repetition – it is, “in the interest of … public order or morality”.

The principle in the Mian Bashir case does apply in Malaysia. Important points emerge. These will be useful for our legislature. I hope our Parliament and government will look at this closely.

The Indian Supreme Court judges in the Mian Bashir case said that an act preventing party-hopping does not stop a person from leaving his party. It only takes away his right to remain as an elected representative. If a politician quits his party before elections, that is allowed. If he does it after becoming a people's representative, the law stops him.

The reasoning of the judges is clear:

When you sit as an MP or a state assemblyman, you are not merely exercising your personal rights. You are exercising rights on behalf of voters who had entrusted you with a mandate. The law will step in - or should step in - to uphold the wishes of one's constituents.

What is so wrong in this? How can that be unconstitutional? The current ruling coalition must remember that this might happen to them, come another 4 years. Should we allow them to join the ranks of the previous regime? What do you think? Do you think party-hopping should be banned?

The underlying question in all the examples we saw above is: Why do these things keep recurring, time after time? It is because the people’s representatives do not respect their voters. In becoming amphibians, they sell out their voters, their hopes and aspirations. They deceive their constituents. They betray their promises. They simply do not care.

If we enact a new Anti-Hopping Act, what should it do? It is time Parliament enacts a new law – one that declares that:

(1) once a person jumps party, after succeeding in an election, his or her seat must fall vacant;

(2) all the expenditure of re-election of the jumping candidate must be borne by him;

(3) He cannot, for a period of time (say, 10 years?) stand for elections;

(4) He cannot accept any public or private position of responsibility after that.

Surely the people of Malaysia deserve better than amphibians as our representatives?

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.