THE current debate among MPs on both sides of the aisle in relation to the proposed amendment to the federal constitution to allow anti-hopping laws to be enacted and enforced is not about the need of having such laws or constitutional amendments.
But the risk that if such laws or constitutional amendments are not properly drafted or ambiguously drafted may lead to abuses that can undermine the very principle of representative democracy under our constitution.
Presently the government is proposing a short and simple amendment to Article 10 in its constitutional amendment bill in Parliament.
Article 10 of the federal constitution, titled Freedom of speech, assembly and association, provides constitutional protection to citizens in relation to their right of free speech, assembly and association.
These are often considered as part of the fundamental liberties, which our constitution provides its citizens.
There are others, of course, including equality and freedom from discrimination in other parts of the constitution.
There are of course exceptions to these protections, but thus far Article 10 has prohibited any MP from losing his seat or being subject to substantial penalty because he or she wishes to leave his or her party and join another.
Even the exceptions to Article 10 to these protections have not been able to do this even though party-hopping can be termed immoral and could be argued is covered by Article 10 (2)(c), which allows Parliament to pass laws to restrict the right of association on the grounds of public order or morality.
The present proposed constitutional amendment bill, the subject of concern by many MPs, proposes to allow the government the power to pass an anti-hopping law “relating to membership in a political party of members of the House of Representatives, and members of the state legislative assembly may also be imposed by federal law”.
The understandable concern by many MPs is that the detailed content of this federal law is not known and even if it was, it can be amended by a simple majority by a later government.
For instance, it is technically possible for a subsequent less responsible government, in an extreme example, to amend the anti-hopping law by a 51% majority to say MPs or state assemblymen cannot join political party A and that may be lawful.
The problem arises because by a simple majority the government may control the relationship between party membership and holding office as an MP or assemblyman.
Of course, I am not saying this is what the intention of the government is. In fact, the government and opposition parties must be commended in pushing for anti-hopping laws.
They all realise that “bad frogs” are those who change parties for personal interests and to destabilise the government.
In this respect, a simple tweak of the proposed constitutional amendment bill is required to safeguard any risk of abuse and reduce anxiety of all, while achieving a noble purpose.
I would suggest that any federal law to be enacted in relation to “membership in a political party of members of the House of Representatives and members of the state assembly” be allowed to be passed only by a two-third majority of the total members of the house.
This can be easily inserted into the proposed amendment to the constitution and will provide sufficient safeguard to any uncertainties that arise from any proposed new federal law relating to anti-hopping. – The Vibes, April 11, 2022
Derek Fernandez is a prominent lawyer and local councillor
