Ask Lord Bobo: Of Frogs, Rats, and Penang’s Unconstitutional Anti-Party Hopping Law


Lord Bobo, what do you think of Penang’s new anti-hopping law? Is it unconstitutional? (Ribbit, via email)

On 1 November 2012, the Penang State Legislative Assembly passed the Penang State Constitution Enactment (Amendment) Bill 2012 (“the Bill”).

Unfortunately, as at the date this article was written, the precise terms of the Bill remain unknown, as the Bill could not be located anywhere on the Penang State Legislative Assembly’s website.

So much for Penang’s much heralded commitment to “Competency, Accountability, Transparency” (saved somewhat only by virtue of proceedings in the State Legislative Assembly being broadcast live on the Internet).

Nevertheless, going by news reports the Bill apparently:

  1. complied with the pre-requisites for an amendment as prescribed by Article 35 of the Constitution of the State of Penang; and
  2. provides that a member of the dewan (assembly) who has been elected as a candidate of a particular political party must vacate his seat if: (a) he gives up his membership; (b) is expelled as a party member; or (c) stops from becoming a member, of the political party concerned for whatever reason.

Simply put, as far as Penang is concerned no elected representative can party hop or cross the floor, and if they did so, they must vacate their seat.

Proponents of the Bill argue that there is a dire need for such anti-party hopping legislation. Governments, they say, should only be formed as a consequence of voters expressing their will at the ballot box. So when Malaysia has Sabah (1994) and Perak (2009) as part of the tapestry forming the nation’s political past, an anti-party hopping legislation is vital. Even so, let’s abandon subjectivity and embrace something more objective, that orphan child which is hailed as sacrosanct one day, and ignored the following day – the Federal Constitution.

The right to party hop or to cross the floor is part of the freedom to freely associate with whosever one wills. This right is a fundamental liberty guaranteed under Article 10(1)(c) of the Federal Constitution.

Of course, like most rights under the Federal Constitution, it is subject to exceptions. Legislations can be enacted to limit or regulate the right to freely associate with whosoever one wills.

Does this therefore mean that the Bill is constitutionally valid? The short answer to that is no. A very clear no.

The Bill is unconstitutional, as legislations limiting or regulating the right in question cannot be passed by State Legislative Assemblies. Only Parliament can enacts such laws. This much is evident from Article 10(2)(c) of the Federal Constitution and confirmed by the Supreme Court decision in 1992 in Dewan Undangan Negeri Kelantan & Anor v. Nordin Salleh & Anor.