KOLUMNIS HANIFF KHATRI: State Legislative Assemblies Empowered To Enact And Enforce State Anti Party-Hopping Laws!!

KOLUMNIS HANIFF KHATRI: State Legislative Assemblies Empowered To Enact And Enforce State Anti Party-Hopping Laws!!

Wahai Rakyat Malaysia yang prihatin, Assalamualaikum dan Salaam Sejahtera :

THE EDGE MARKETS 17.08.2022 : ‘Federal Court: States can disallow party hopping, Nordin Salleh no longer good law’- Haniff Khatri :

“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 disassociate, 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.

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.

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.”




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