The relevance of India’s experience on anti-defection law to Malaysia
The move to adopt an anti-hopping law is not unique to Malaysia. Many other countries including India, a country that shares similar constitutional features like Malaysia, have adopted the anti-hopping law by way of amendments to their respective constitutions. In India, it is termed anti-defection law whereas in Malaysia it called the anti-hopping law.
The motivations are the same, except for the difference in details.
The move towards the anti-hoping law is based on the considerations that in its absence there is an abuse of democratic process when legislators move from one party to another upsetting the mandate given by the electorate.
The defections of political party members is an abuse of the mandate of the people during elections. If the defections are not stopped, governments are not stable.
Party defections are described as “gold rush”.
Anti-hopping law cannot be just passed without constitutional amendments touching on the concept of freedom of information.
In Malaysia, the government and the opposition are just doing this to debate and approve the Constitution amendments which requires a two-third majority.
Once this hurdle is cleared as in the case of India, the next step would require a simple majority for the actual legislation itself.
The government must be prepared for further constitutional amendments in the future, if there is need.
Laws are not something frozen in space and time. They need to reflect the passage of time and the needs of democracy.
In 1985 India amended its Constitution under the government of Rajiv Gandhi for the first time history.
Subsequently, there were further amendments to the Constitution im 2003 to address the shortcomings of the earlier amendments. These changes included the amendments to curb the power of the speaker of the Parliament and the heads of the state legislative assemblies in determining the punishment of the defectors by the provision for more extensive judicial review.
The quantity requirements of mergers and party splits were made tighter. India has come a long way in the passage of the anti-defection law. Malaysia has no choice but to adhere to the constitutional process as in the case of India.
In the 1960s and 1970s, experienced about 50 percent party defections before the passage of the law banning them. Governments were brought down because of the intensity of party hopping. During this period, Congress Party was the main beneficiary of political defections.
There was case in India, where a legislator changed party affiliation three times in one day. The Indian experience in the passage of the anti-hopping law reveals a number of significant developments.
First, public opinion and pressure is important in stemming the tide of the scourge of party defections. Second, the constitutional and democracy process must be followed in the eventual passing of the law.
Third, there might be need for more constitutional amendments in the future, considering the dynamism of democracy. Fourth, there is no finality to constitutional amendments on the matter of party defections.
In Malaysia, the memorandum of understanding between the government and the opposition might have spurred the anti-hopping law, but such an agreement is consistent with the larger public opinion.
In short, party hopping or defection is danger to democracy where the people are the ultimate decision makers.
The scourge of political defections is an affront to public decency.