Shad, who is emeritus professor at Universiti Malaya, said the suggestion was his personal view and was a proposal he would put forward if an MP hops to other parties.
“Maybe he (the MP) has genuine moral, ideological, conscientious objections concerning his party’s direction, but in that case he must go back to his voters and say ‘thank you for electing me last time, now I’m wearing a new songkok (hat) and you need to trust me again (about why I left the party) and I want you to give me a new mandate’,” said Shad.
Shad, who holds the Tunku Abdul Rahman Chair in law at UM, said he was against party-hopping being made an election offence.
“I’ve read with some concern a very extreme proposal in Malaysia that switching camps midway should be an election offence under Article 48 and should be a cause for the seat to fall vacant and a five-year disqualification applies.
“I don’t think we should bring criminal law into the picture here,” he said in an interview on Bernama TV today.
An alternative method would be for a party leader to inform the Speaker of the Dewan Rakyat that an MP is no longer a member of the party if he resigns from his party, votes against the party, or defies the party on an important issue.
However, it would give the party leadership too much power, as party members would be unable to say anything or challenge the party leader.
“The problem is this, if the party doesn’t have the power to take action against an MP, then I’ve been informed by some people, that what the MP could do is stay with the party formally, but keep on voting against it, thereby actually, even possibly, bringing the party to a defeat on a vote of confidence.
“Sadly, there’ll be no solution which is perfect, as in life, so in law we will have to walk the middle path and arrive at what possibly will be the lesser of two evils,” said Shad.
He said Article 48, Clause 6 (of the Federal Constitution) would have to be amended because it currently forbids any MP from contesting any parliamentary election for the next five years if he resigns from his seat.
An amendment to Clause 6 as well as to Article 10 (which spells out the right to freedom of association) would have to be made, Shad said.
He said defections had caused the fall of state governments, such as Terengganu in 1962, Sarawak (1966), Kelantan (1977) and the federal government in the last two years.
Such changes in government had brought chronic instability to the country, he said.
A special parliamentary sitting is being held to debate the Constitution (Amendment) (No. 3) Bill 2022.
It will be tabled at the Dewan Rakyat tomorrow, and at the Senate on Tuesday if it receives approval by two thirds of MPs.
The amendment is to provide Parliament the power to enact a new Act prohibiting MPs from switching parties.
Prime Minister Ismail Sabri Yaakob said earlier today that the anti-hopping law would be tabled in July.