This article first appeared in The Edge Malaysia Weekly on August 8, 2022 - August 14, 2022
LAST Wednesday, Malaysia’s apex court overturned a long-held precedent that the Federal Constitution’s provision on freedom of association denied state governments the right to legislate to disallow assemblymen from party hopping.
In a landmark judgment, the Federal Court also held that once elected, a lawmaker no longer enjoys his or her personal right to associate, but would be governed by the ticket he or she stood on.
For the past 30 years, the precedent set in Kelantan State Legislative Assembly & Anor v Nordin Salleh & Anor (Nordin Salleh) by the Supreme Court (the country’s then-highest court) — that states did not have the jurisdiction to legislate against party hopping because of the Federal Constitution’s guarantee on the freedom of association — had been held up as good law, even though it may have been to the detriment of voters who oftentimes elect their representatives along party lines.
In the landmark decision, not only did the seven-member bench overrule Nordin Salleh, but Chief Justice Tun Tengku Maimun Tuan Mat also described the right to freedom of association, as enshrined under Article 10(1)(c) of the Federal Constitution, as not limiting the power of the states to enact laws that govern assemblymen from switching sides.
Tengku Maimun said although the Supreme Court decision was correct in stating that the right to form associations includes the right to dissacociate, it was incorrect to find that the right of an elected representative to change political parties is, in the first place, part and parcel of the right of association guaranteed by Article 10(1)(c).
“The right to be a member or to remain a member of the House (Parliament) or a State Assembly is not a right guaranteed by Article 10(1)(c). In point of fact, Article 10(1)(c) is not engaged.
“For these reasons, we find Nordin Salleh (ruling by the Supreme Court) to the extent that it says that elected representatives have the right to change political associations once elected — as a right to form associations under Article 10(1)(c) — as constitutionally incorrect. Nordin Salleh is, to that extent, hereby overruled.
“In our view, once an elected representative has succeeded in an electoral contest on the ticket that he sought, he has exercised his right of association by contesting on that ticket. Once he is in the House or the State Legislature, the nature of his association takes on a different character, in that it is no longer his personal right to associate but now governed by the ticket he stands on upon, having been given the mandate by the electorate that entrusted to him that position,” Tengku Maimun said.
The matter before the apex court stemmed from a challenge by four Parti Pribumi Bersatu Malaysia (Bersatu) assemblymen of Article 14A of the Penang constitution enacted in 2012, which empowers the State Legislative Assembly to remove any assemblyman who decides to switch sides.
Article 14A of the Penang constitution states that a state assemblyman should vacate his seat if he resigns, is stripped of his membership, ceases to be a politician or is chosen as a candidate by another political party.
In ruling Article 14A as constitutional, the seven-member bench answered the referral question posed by the Penang state legislature and its speaker as to whether Article 14A of the State Constitution of Penang is void for being inconsistent with Article 10(1)(c) of the Federal Constitution, in the negative.
The four assemblymen in the frame are Khaliq Mehtab Mohd Ishaq (Bersatu-Bertam), Zolkifli Md Lazim (Bersatu-Teluk Bahang), Zulkifli Ibrahim (Bersatu-Sungai Acheh) and Dr Afif Bahardin (Bersatu-Sebarang Jaya).
Penang chief minister Chow Kon Yeow said he hopes the High Court would convene soon so as to allow the four to decide whether they want to proceed with the suit.
“Any decision made by the High Court shall be part of the process in declaring the affected seats vacant, as the case may be.
“The Penang government remains resolute in upholding the voters’ mandate, and elected representatives must be held accountable for actions contrary to the given mandate,” he said in a statement.
Even earlier, in 1992, the Kelantan legislative assembly had passed Article XXXI(1) that stipulates “if any member of the legislative assembly who is a member of a political party resigns or is expelled from, or for any reasons whatsoever, ceases to be a member of such political party, he shall cease to be a member of the legislative and his seat shall become vacant”.
That Kelantan law was declared null and void following the Nordin Salleh decision by a five-member Supreme Court led by then-Lord President Tun Abdul Hamid Omar.
The impact of last week’s decision may well be the resurrection of Article XXXI(1) of the Kelantan constitution.
Some members of the legal fraternity — including a former Court of Appeal judge who wanted to remain anonymous; Datuk Malik Imtiaz Sarwar, who represented the Penang state legislative assembly; and Mohd Haniff Khatri — have pointed out that Nordin Salleh is now considered bad law.
Haniff told The Edge that the effect of last week’s decision is that Kelantan could use Article XXXI in the 15th general election.
“Now that the Federal Court has revisited (the issue) and said that Nordin Salleh is bad law, the previous declaration by the Supreme Court becomes bad. So post-15th general election, the Kelantan legislative assembly is bound to use this provision,” he said.
Malik said that as far as he knows, Penang and Kelantan are the only two states that have legislation to bar party hopping, and that resulted in the relevant state seat being vacated.
Haniff opined that following the latest decision, the Penang legislative assembly can ask the four state assemblymen to vacate their seats as a result of their party Bersatu’s move in 2020 to leave the ruling coalition, and to hold by-elections for their seats. But as it is less than two years before the expiry of the state assembly, the lawmakers can be instructed to vacate their seats without by-elections being held.
After finding on the constitutionality of Article 14A, the Federal Court had instructed the Penang High Court to decide on the assemblymen’s challenge against the Penang legislature from forcing them to vacate their seats. But will the latter do so?
This is because the circumstances are not so clear-cut.
The four could argue that technically, they did not leave Bersatu, but that Bersatu as a party left the then-ruling Pakatan Harapan coalition.
To complicate matters, earlier on, two of the four, namely Dr Afif and Zulkifli, did not leave their original party PKR, but were sacked from the party and subsequently joined Bersatu.
Rosli Dahlan, counsel for one of the four men, had argued that while the perception was that the men had “lompat” (jumped), they had not.
“Under the federal amendments (tabled last month) they would not be disqualified.
“Being sacked is not lompat parti (hopping to another party). If an assemblyman is sacked because he criticised the rogue party leadership, is he not justified? If the party forms a new alliance because they can’t agree anymore, assemblymen of that party cannot be accused of lompat parti.
“Yet, under Penang’s Article 14A, they are caught. How can the Penang constitution be inconsistent with the Federal Constitution?” he queried when comparing it with the present federal anti-party hopping law that was tabled at the end of July.
Rosli added that because of all these permutations, the legal team will study in depth to ensure that injustice is not inadvertently caused and that the true spirit of democracy is upheld.
At present, the DAP and more recently, Umno, had indicated they would be researching amendments to their party constitution to reflect or be in line with the proposed anti-hopping legislation.
“If you have a rogue party leadership like what had happened in Umno, the assemblymen or members who criticise and get sacked, is it considered party hopping? Is that what democracy is all about?” Rosli asked.
“That’s what the Penang constitution currently provides. Most party constitutions also provide that any member who brings the party to court will get the sack as section 18C [of the] Societies Act 1966 can be used to block any court case.”
Section 18C of that Act stipulates that no court shall have the jurisdiction to entertain or determine any suit, application, question or proceeding on any ground regarding the validity of such decision made by the party — which means no one can bring any party dispute to court.
This was the situation that Tan Sri Muhyiddin Yassin found himself in in 2015 when he was removed as deputy prime minister and sacked as Umno deputy president as well as from the party, after he challenged then-prime minister Datuk Seri Najib Razak to explain the burgeoning debt of (now-defunct) 1Malaysia Development Bhd. Would his sacking from the party under those circumstances constitute party-hopping?
Only time will tell, but in the coming months ahead of the impending 15th general election (which must be held by September next year), state governments are likely to be considering the passing of legislation that falls in line with the federal bill against party hopping.
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