LAST Wednesday, Malaysia’s Supreme Court overturned a long-standing precedent that the Federal Constitution’s provision on freedom of association denied state governments the right to legislate to ban members of the Assembly from jumping in gone.
In a landmark decision, the Federal Court also ruled that once elected, a legislator no longer enjoys his personal right of association, but would be governed by the ticket he was on.
Over the past 30 years, the precedent set in the Kelantan and Anor State Legislative Assembly against Nordin Salleh and Anor (Nordin Salleh) by the Supreme Court (the highest court in the land at the time) – that states had no jurisdiction to legislate against party-hopping due to the Federal Constitution’s guarantee of freedom of association – had been considered good law, though it may have been to the detriment of voters electing often 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 outlined the right to freedom of association as enshrined in Article 10 (1)(c) of the Federal Constitution, as not limiting the power of the states to enact laws governing deputies to change sides.
Tengku Maimun said that although the Supreme Court decision was correct in stating that the right to form associations includes the right to disassociate, it was incorrect to conclude that an elected representative’s right to change political party is, in the first place, an integral part of the right of association guaranteed by Article 10(1)(c).
“The right to be a member or to remain a member of the Chamber (Parliament) or of a National Assembly is not a right guaranteed by Article 10(1)(c). In fact, Article 10(1)(c) is not engaged.
“For these reasons we find Nordin Salleh (Supreme Court judgment) insofar as it says elected officials have the right to change political associations once elected – such as a right to form associations under the section 10(1)(c) – as constitutionally incorrect Nordin Salleh is, to that extent, overruled.
“In our opinion, once an elected official has succeeded in an electoral contest on the ticket he has applied for, he has exercised his right of association by running for this ticket. Once he is in the House or State Legislature, the nature of his association assumes a different character, in that it is no longer his personal right to associate, but that ‘He is now governed by the ticket on which he stands, having received the mandate from the electorate who gave him this post,’ said Tengku Maimun.
The Supreme Court case arose out of a challenge by four MPs from the Pribumi Bersatu Malaysia (Bersatu) Party to Article 14A of the Penang constitution enacted in 2012, which empowers the state Legislative Assembly to revoke any member who decides to change sides.
Article 14A of the Penang constitution stipulates that a member of the state assembly must vacate his seat if he resigns, is removed from office, ceases to be a politician or is chosen as a candidate by another political party.
In finding Section 14A to be constitutional, the seven-member bench answered the remand question posed by the Penang State Legislature and its Speaker as to whether Section 14A of the Penang State Constitution Penang is void for being inconsistent with Article 10(1)(c) of the Federal Constitution, in the negative.
The four MPs 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 hoped the High Court would meet soon to allow the four to decide whether they wanted to pursue the lawsuit.
“Any decision taken by the High Court will form part of the process of declaring the vacancies of the relevant seats, as the case may be.
“The Penang government remains committed to respecting the mandate of the voters, and elected representatives must be held accountable for actions contrary to the given mandate,” he said in a statement.
Impact on Article XXXI (1) of the Kelantan Constitution
Even earlier, in 1992, the Kelantan Legislative Assembly passed Article XXXI(1) which states “if a member of the Legislative Assembly who is a member of a political party resigns or is expelled, or for any reason whatever, ceases to be a member of such a political party, he ceases to be a member of the legislature and his seat becomes vacant”.
This Kelantan law was declared null and void following the Nordin Salleh ruling by a five-member Supreme Court headed by then 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 wished to remain anonymous; Datuk Malik Imtiaz Sarwar, who represented the Penang State Legislative Assembly; and Mohd Haniff Khatri – pointed out that Nordin Salleh is now seen as bad law.
Haniff told The Edge 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 reconsidered (the issue) and declared Nordin Salleh to be bad law, the Supreme Court’s previous statement becomes bad. So after the 15th general election, the Kelantan Legislative Assembly is bound to use this provision,” he said.
Malik said that to his knowledge, Penang and Kelantan are the only two states that have legislation banning parties, which has caused the relevant state’s seat to become vacant.
Haniff opined that following the latest decision, the Penang Legislative Assembly can ask all four members of the National Assembly to vacate their seats following their Bersatu party’s decision in 2020 to leave the coalition in power and organize by-elections for their seats. But with less than two years left before the state assembly expires, lawmakers may be asked to vacate their seats without a byelection taking place.
Different types of “jumps”
After ruling on the constitutionality of Section 14A, the Federal Court had instructed the Penang High Court to rule on the assembly members’ challenge to the Penang Legislature to force them out of their seats. But will he do it?
This is because the circumstances are not so clear.
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 two of the four i.e. Dr. Afif and Zulkifli did not leave their original PKR party but were sacked from the party and later joined Bersatu.
Rosli Dahlan, the lawyer for one of the four men, had argued that while the perception was that the men had “lompat” (jumped), that was not the case.
“Under federal amendments (filed last month), they would not be disqualified.
“Being sacked is not lompat gone (jumping to another party). If an MP is sacked because he criticized the rogue party leadership, isn’t he justified? If the party forms a new alliance because it can no longer agree, the deputies of this party cannot be accused of lompat parti.
“Yet under Article 14A of Penang they are caught. How can the constitution of Penang be incompatible with the federal constitution? he wondered, comparing it to the current federal anti-party skipping law that was filed in late July.
Rosli added that because of all these permutations, the legal team will investigate thoroughly to ensure that the injustice is not inadvertently caused and that the true spirit of democracy is maintained.
By now, the DAP and, more recently, Umno, had indicated that they would seek amendments to their party’s constitution to reflect or be in line with the proposed anti-hopping legislation.
“If you have a rogue party leadership like what happened in Umno, MPs or members who criticize and get fired, is that considered party jumping? Is this democracy? Rosli asked.
“That’s what Penang’s constitution currently provides. Most party constitutions also provide that any member who takes the party to court will be removed under Article 18C. [of the] The Companies Act 1966 can be used to block any court case.
Section 18C of that Act provides that no court shall have jurisdiction to hear or determine any suit, demand, matter or proceeding for any reason relating to the validity of any such determination made by the party. – which means that no one can bring a dispute between the parties to court. .
This is the situation Tan Sri Muhyiddin Yassin found himself in in 2015 when he was stripped of his post as deputy prime minister and sacked as deputy chairman of Umno as well as the party, after defying then Prime Minister Datuk Seri Najib Razak to explain the debt of (now defunct) 1Malaysia Development Bhd. Would his dismissal from the party under these circumstances constitute a celebration?
Only time will tell, but in the coming months ahead of the impending 15th general election (due to be held by September next year), state governments are likely to consider passing legislation in line with the federal anti-party skipping bill. .