Anti-Hopping Law: Designed to Deter, Drafted to Fail

The Constitution (Amendment)(No.3) Bill 2022 was passed in the Parliament on 28 July 2022 by a unanimous vote of 209 Members of Parliament (“MP”) present at the Dewan Rakyat (with 11 Members absent), a historical act of unison performed by both sides of the political divides. Its noble aim is to stop elected representatives from switching parties mid-term and put an end to the political instability epitomised by the infamous Sheraton Move of 2020, thereby strengthening voters’ confidence in our electoral system. Yet barely four years on, that law’s weaknesses have been ruthlessly exposed by real events in both Parliament and state assemblies. What was widely touted as reform has instead become a showcase of statutory loopholes and partisan interpretation.

The Speaker’s Role

The central problem lies in the very mechanism for enforcing the law. Only the Speaker of the Dewan Rakyat or a state assembly can “establish” that a seat has become vacant under Article 49A of the Federal Constitution. This occurs only when a seat is declared vacant after a member (a) resigns from his party, (b) ceases to be a party member, or (c) who won as an independent candidate joins another party. The Speaker then notifies the Election Commission (“EC”) if he finds that a casual vacancy has occurred. The power to hold a by-election lies with the EC.

On paper this looks straightforward. But in reality the provision gives wide discretion to Speakers, who are politicians usually aligned with the ruling coalition, who may be elected in Parliament or appointed pursuant to state constitutions. Far from being an impartial arbiter, the Speaker often interprets the law in ways favourable to the government of the day.

The clearest example came in mid-2024 when 6 MPs from Parti Pribumi Bersatu Malaysia (“Bersatu”) publicly pledged support for Prime Minister Datuk Seri Anwar Ibrahim’s government without formally joining any other party or resigning from Bersatu. They were consequently said to have ceased as Bersatu’s members by operation of the party constitution, in particular a clause on automatic cessation of membership which was specifically inserted to stop party leaders from switching political allegiance. Yet despite this, the Dewan Rakyat Speaker ruled that their seats had not become vacant. Downplaying the need to interpret the phrase “cease to be a member”, his reasoning was was premised on the absence of clear declaration that the 6 MPs were leaving the opposition to join the government. Instead, the Speaker claimed that Bersatu’s new party rules themselves might have violated the Federal Constitution.

This interpretation was sharply at odds with how the Speaker of Kelantan State Assembly had applied the law. In June 2024, the State Speaker ruled that the Nenggiri state seat was vacated because its Bersatu assemblyman cum MP of Gua Musang openly pledged support for to Prime Minister Datuk Seri Anwar Ibrahim, which resulted in immediate cessation of his party membership thereby triggered the anti-hopping law.

These events demonstrate two parallel realities, with two opposite outcomes, all because one individual, who is not independent from partisan politics, gets to decide whether a seat is vacant.

The Speaker’s partiality in addressing issue of casual vacancy is even more evidenced in the recent shake up caused by 3 assemblymen in Perlis, which led to the replacement of Parti Islam Se-Malaysia (‘PAS”) Menteri Besar by a Bersatu leader. Here, the 3 assemblymen’s membership with PAS was declared by the party as terminated pursuant to its constitution for contradicting the party’s stance. Being a PAS leader himself, the State Speaker declared the vacancies of the 3 state seats. Interestingly, the State Speaker later retracted the part of his notice to EC regarding the need for by-elections to be held, and he explained that such decision was made after considering, among others, his party’s stance as a Perikatan Nasional component party on its commitment to maintain the stability of the Perlis state government. Quite obviously, it was a political decision.

Loopholes That Render the Law Impotent

As illustrated, the law suffers from significant weaknesses:

1. Support for Leader in the Opposite Political Divide Isn’t Covered

The law was drafted to catch those who change party membership, not those who merely shift their political support. That meant elected representatives could declare support for a rival leader and still keep their seats because they don’t resign from their party. This is the elephant in the room that the anti-hopping law has failed to address. By and large, people cast their votes based on candidates’ political alignment.

Allowing elected representatives to change stance as they wish disgusts the voters, even if they remain in the same party. Consequently, public confidence in the electoral system erodes, voting rate declines. For this reason, there is an increasing number of people who do not bother to vote in elections.

2. Different Outcomes Across Assemblies

There is no consistent interpretation across federal and state legislatures. This makes enforcement unpredictable and dependent on political advantage rather than legal clarity. It must be noted under Article 49A, expulsion of an elected representative will not trigger the vacancy of his seat. Professor Shad Saleem Faruqi has described the law as “fatally defective” for its failure to clearly distinguish between “ceasing to be a member” and being “expelled” from the party. True enough, such ambiguity offers room to speakers to interpret statutory provisions in favour of the ruling parties.

3. Non-Justiciability of the Speaker’s Ruling

The real test of the anti-hopping law came when several Bersatu MPs openly supported the Prime Minister from the opposing side without resigning from their party. Under the coalition government’s own logic, this should have amounted to a breach of party discipline with consequences under the anti-hopping law. Yet the Dewan Rakyat Speaker’s ruling favoured the government, albeit at the expense of the efficacy of the law (supra).

On 9 January 2026, the Federal Court in a 2-1 majority decision dismissed Bersatu’s application for leave to appeal on the Dewan Rakyat Speaker’s refusal to declare as vacant 4 Sabah parliamentary seats won by the party’s former members. Such dismissal has affirmed the position of the law that the Speaker’s ruling on casual vacancy of a seat under the anti-hopping law falls within the business of parliament, therefore is immune from judicial interference based on the doctrine of separation of powers.

In describing the ineffectiveness of the law, Bersatu Vice President Datuk Seri Ronald Kiandee said that it “is not just weak, but akin to being a ‘legal ornament’ without true impact on the integrity of the democratic system and the people’s mandate”. This I wholly agree, but the doctrine of the separation of powers was upheld for a bigger reason. The remedy lies in the Parliament.

Strengthening the Law for Its True Purpose

To restore the law’s integrity and public confidence, it is essential to amend the existing constitutional provisions by removing or imposing checks on the Speaker’s discretion. Vacancy should be a strictly defined legal outcome, not subject to the Speaker’s political judgment. If the statutory criteria are met, the seat should be deemed vacant automatically, with the EC notified without delay.

A clause should be introduced that if an MP publicly declares support against their elected party’s position, it triggers review of their status.

The law should provide precise definitions of terms like “ceased to be a member” to limit subjective interpretation. It should also mandate standard procedures across federal and state legislatures. Where disputes arise, these should be resolved by courts rather than political officers. This will ensure legal consistency and remove incentives for partisan decision-making.

Conclusion

Malaysia’s anti-hopping law was born of a noble aim viz to uphold electoral mandates and strengthen democratic stability. But noble aims alone do not make sound law. As recent events have shown, the statute’s flaws defeat that purpose by enabling political actors to bend enforcement for advantage. On 5 January 2026, the Prime Minister revived his reform pledge, threw hints at Bill to limit Prime Minister’s tenure to 2 full terms, along with separation of the Attorney General Chambers and Public Prosecutor’s office. If he is serious in honouring institutional reforms, strengthening of the anti-hopping law should be given equal priority.

Readers will recall that in September 2008, when Anwar Ibrahim was in the opposition, he claimed that he had sufficient number of MPs to take power from the then Prime Minister Abdullah Ahmad Badawi, which, if true, would entail the switching of at least 30MPs to his side. In adding credence to his claim, he even set a deadline and urged Pak Lah to resign.

It is unclear as to whether PMX still subscribes to such philosophy in that political convenience justifies allegiance switching. He must always be mindful that the present anti-hopping law is a double-edged sword, what goes around comes around, one day it may boomerang on those currently in power.

Be that as it may, unless the loopholes are closed and the law made clear, predictable and insulated from partisan influence, the promise of anti-hopping reform will remain hollow, and voters, not politicians, will shoulder the loss.

Datuk Seri Panglima Teo Chee Kang is a former Minister of Special Tasks in the Sabah Chief Minister’s Department. He is also the former president of Liberal Democratic Party and former state assemblyman for Tanjong Kapor.