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LAST Sunday, April 3, marked the 30th anniversary of the landmark decision in Dewan Undangan Negeri Kelantan & Anor v Nordin Bin Salleh & Anor.
The country’s apex court concluded that anti-hopping laws requiring an assemblyman who defected from Semangat 46 to Umno to vacate his state seat were invalid.
In that case, the Kelantan constitution – a state law – by Article XXXIA, sought to impose a restriction on the fundamental right of a member of the state legislature to form associations, which of course included the right to dissociate, and it operated by way of disqualification once the member exercised that right.
Article XXXIA came about following an amendment to the state constitution vide the Laws of the Constitution of Kelantan (First Part) (Amendment) Enactment 1991. Incidentally, it was passed also in the month of April, a year earlier.
According to the Supreme Court (now Federal Court), it was inconceivable that an assemblyman could be penalised by a state law for exercising a fundamental right which the highest law of the land – the federal constitution – expressly confers upon him subject to such restrictions as only Parliament may impose and that too on specified grounds, and on no other grounds.
As such, by virtue of Article 4(1)(c) of the federal constitution, Article XXXIA of the Kelantan constitution was to that extent void.
Freedom of association is a fundamental right guaranteed by Article 10(1)(c) of the federal constitution and can only be restricted on any of the grounds specified in Article 10(2)(c) and (3), namely, in the interest of the security of the federation or any part thereof, public order or morality.
Article 10(2) of the federal constitution provides that only Parliament may by law impose restrictions referred to in Article 10(2), (3) and (4) of the federal constitution. The restriction imposed by Article XXXIA of the Kelantan constitution could not be imposed by a law passed by the state legislature and as such Article XXXIA was void.
So, while a state legislature may not by law impose restrictions on freedom of association guaranteed under Article 10(1)(c) of the federal constitution, Parliament may if “it deems necessary or expedient in the interest of the security of the federation or any part thereof, public order or morality” – Article 10(2)(c) of the federal constitution.
In short, an anti-party hopping law can be constitutional, especially so when the law is a provision of the constitution.
Take the example of the constitution of the Republic of Singapore which has a simple provision on it. Article 46(2)(b) states that the “seat of a Member of Parliament shall become vacant if he ceases to be a member of, or is expelled or resigns from, the political party for which he stood in the election”.
The provision was first inserted into the State of Singapore Constitution in 1963 after the state’s Legislative Assembly General Election 1963. The general election (GE) was the People Action Party’s (PAP) toughest election battle in its history and the campaign coincided with Singapore joining Malaysia on September 16, 1963.
Then Prime Minister Lee Kuan Yew had called for the GE to seek a new mandate after the ruling PAP’s majority in the legislative assembly whittled to zero following a spate of defections of its assembly members. The GE saw PAP regain its two-thirds majority in the assembly. Lee swiftly introduced an anti-party hopping provision into the state’s constitution.
The Constitution of the State of Singapore 1963 was retained as the Constitution of the Republic of Singapore following independence in 1965.
Singapore, therefore, has had an anti-party hopping law for almost 59 years now.
In 2012 and during the lifetime of its founding father who introduced the anti-party hopping law – Lee died at the age of 91 on March 23, 2015 – Singapore saw the law being enforced against an MP expelled from “the political party for which he stood in the election”.
The MP was Yaw Shin Leong, who was then the treasurer in the central executive council of Workers’ Party (WP), an opposition party.
In the May 2011 GE, he contested for the parliamentary seat of Hougang – a single member constituency (SMC). He won handsomely, defeating Desmond Choo Pey Ching of PAP with 64.81% of the votes.
Sometime in January 2012, rumours emerged of Yaw’s alleged extramarital affairs with a married woman. Following that, Yaw disappeared from the public eye. He was a no-show at his meet-the people session and was reportedly absent from his town council office.
On February 7, 2012 Yaw resigned as treasurer of WP. No reason was given for his resignation. Two days later, another woman was allegedly linked with Yaw.
On February 15, 2012, WP announced that it had expelled Yaw with immediate effect. At a press conference to announce the expulsion, party chief Low Thia Khiang said Yaw was expelled over his alleged marital affairs.
The decision was made because the party held that Yaw had fallen short of its expectations in being transparent and accountable to the party and to his constituents. Low also announced that WP was prepared for a by-election.
Following Yaw’s expulsion from his party, the speaker of Parliament duly declared the Hougang seat vacant, effective from the date of expulsion as required by the constitution.
After a protracted legal challenge, a by-election for the Hougang SMC was finally held on May 26, 2012. WP retained the seat, its candidate Png Eng Huat winning with 62.08% of the votes. It was slightly less than Yaw’s winning percentage in 2011, but a handsome win nevertheless. The seat has been WP’s stronghold since 1991.
The Indian constitution has more elaborate provisions in its tenth schedule – popularly known as anti-defection law. The law has come under much criticism in recent years, perhaps because it is too elaborate.
The Singapore experience shows that an anti-hopping constitutional provision can be as simple as stating that the “seat of an MP shall become vacant if he ceases to be a member of, or is expelled or resigns from, the political party for which he stood in the election”.
One may argue that the words “or is expelled” may be abused by party leaders against dissenters. But ceasing to be a member or resigning from the political party for which the member stood in the election would work against party hoppers.
This takes us to the proposed constitutional amendment to be tabled at the special parliamentary sitting tomorrow. As at the time of writing, the Constitution (Amendment) (No.3) Act 2022 Bill has yet to be published on the official portal of Parliament. However, copies of the bill were reportedly distributed to MPs on Thursday.
A copy of the bill can be sighted on Subang MP Wong Chen’s Facebook.
PAS secretary-general Datuk Seri Takiyuddin Hassan has also made reference to the constitutional amendment bill. Takiyuddin, who is also energy and natural resources minister, said that PAS will give its full support to the bill.
The bill proposes to amend Article 10 of the federal constitution, introducing a new Clause (3A), which reads as follows:
“Notwithstanding paragraph (c) of Clause (2) and Clause (3) restrictions on the right to form associations conferred by paragraph (c) of Clause (1) 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.”
Wong rightly highlighted that the proposed clause is too wide. Anything relating to membership in a political party can be a subject of a federal law under the clause. This will allow laws beyond stopping party-hopping.
It will be regressive.
Pengerang MP Datuk Seri Azalina Othman Said has rightly also warned against only amending Article 10 of the federal constitution, tweeting that amending Article 10 without strictly defined anti-party hopping laws would be “too wide and dangerous”.
It will take only a simple majority to pass a law “relating to membership in a political party” when the “mischief” is in party-hopping.
Azalina’s suggestion is to amend Article 48(6). She has a valid point. Any constitutional amendment to enable a federal anti-party hopping law should be considered under Chapter 4 (on Federal Legislature) of the federal constitution, as exemplified in Article 46(2)(b) of the constitution of Singapore.
This can either be a new Article 49A, as has earlier been reported in the media, or a new clause under Article 48 (on disqualification for membership of Parliament).
Such a clause can provide that notwithstanding paragraph (c) of Clause (1) and Clause (3) of Article 10, Parliament may make a law relating to disqualification for membership of the House of Representatives and state assembly if an MP or assemblyman ceases to be, other than by way of expulsion, a member of, or resigns from, the political party for which he stood in the election.
Or something to that effect.
That should be the constitutional amendment to allow for a federal anti-party hopping law, instead of the wide powers in the proposed Clause (3A) of Article 10.
Unless an appropriate constitutional amendment is proposed, the country may be counting on more years for an anti-party hopping law – if MPs break party ranks and vote on their conscience. – The Vibes, April 10, 2022
Hafiz Hassan is a reader of The Vibes