JUNE 12 — In 1992, the Supreme Court of Malaysia had a novel question of law to be decided before it. A five-member panel of the Supreme Court comprising of Abdul Hamid Omar LP; Harun Hashim SCJ; MohdYusoff Mohamed SCJ; Gunn Chit Tuan SCJ and Edgar Joseph Jr SCJ had the duty of deciding if the then newly enacted anti hopping law by the Kelantan State Government was constitutional.

The case presented before them involved two elected representatives by the name of Nordin Salleh and Wan Najib Wan Mohamed who had resigned from their party Semangat 46 to join Umno. They were the elected representatives of Sungai Pinang and Limbongan constituency.

As far as the story goes, Nordin Salleh and Wan Najib were elected to the Dewan Undangan Negeri Kelantan during the General Elections which were held on 21.10.1990 and were therefore sworn in as members.

After the elections, the Dewan Undangan Negeri Kelantan passed an amendment enactment known as Enakmen Undang-Undang Perlembagaan Tubuh Kerajaan (Bahagian Pertama)(Pindaan) 1991 which essentially added a new article of law known as Article XXX1A which states that:

XXXIA. Vacation of seat due to resignation, etc., from political party.

(1) 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.

(2) For the purpose of Clause (1), the Legislative Assembly shall determine whether a seat has become vacant or as to when a seat becomes vacant and the determination of the Assembly shall be final and shall not be questioned in any Court on any grounds whatsoever

(hereinafter referred to as "Article XXX1A”)

Although the Kelantan State Legislative Assembly passed the enactment on 25.4.1991, Article XXXIA was made to have retrospective effect from 19.11.1990.

On 3.7.1991, the Dewan Undangan Negeri Kelantan passed a resolution pursuant to Article XXX1A that Nordin Salleh and Wan Najib had ceased to be members of the Dewan Undangan Negeri Kelantan and declared their seats for the constituencies of Sungai Pinang and Limbongan vacant.

As a result of the passing of the resolution, the Election Commission of Malaysia took steps to hold a by-election in Sungai Pinang and Limbongan with the dates of nominations being 12.8.1991 and the by-elections to be carried out on 26.8.1991.

Nordin Salleh and Wan Salleh stood for the by-elections as candidates of Barisan Nasional but lost.

They then resorted to save their seats by challenging the validity of the resolution which declared their seat as vacant in the first place by seeking a declaration before the courts that Article XXX1A was unconstitutional and therefore void in effect.

Before we go any further, it is important to keep the following provisions of the Federal Constitution in the forefront of our minds, specifically:

(A) Article 4 (1) of the Federal Constitution which states that the Federal Constitution is the supreme law of the land and that any law passed after the Merdeka Day which is inconsistent with the constitution shall to the extent of the inconsistency be void.; and

(B) Article l0. (1) of the Federal Constitution(Subject to Clause (2), (3) and (4)) which reads as follows:

(a) every citizen has the right to freedom of speech and expression;

(b) all citizens have the right to assemble peaceably and without arms;

(c) all citizens have the right to form associations.

(2) Parliament may by law impose:

(a) xxx xxxxxx

(b) xxx xxxxxx

(c) on the right conferred by para. (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.

(3) Restrictions on the right to form associations conferred by para. (c) of Clause (1) may also be imposed by any law relating to labour or education.

Essentially, Article 10(1)(c) of the Federal Constitution pronounces the right to freedom of association. It means a citizen has the guaranteed rights to form, to join, not to join or resign from an association.

Meanwhile, Article 10(2)(c) states that the right of association can only be restricted by the laws enacted by the Parliament under the circumstances as prescribed therein.

Further, legal precedent mainly from the Indian jurisprudence had also established that any restriction to associate and /or dissociate from an association would make the guaranteed right under Article 10(1)(c) of the Constitution "ineffective and illusory”.

Pitting the state law against the articles of the Federal Constitution, the Supreme Court came to the following determination when it held: (in verbatim)

[1] This Court shares Dr. Anand’s view taken from the Supreme Court decision in Smt. Maneka Gandhi’s case, that in testing the validity of State action with regard to fundamental rights, what the Court must consider is whether it directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise "ineffective or illusory”.

[2] In this case the Kelantan Constitution – a State law by Article XXX1A, seeks to impose a restriction on the fundamental right of a member of the legislation to form associations which of course includes the right to dissociate and it operates by way of disqualification once the member exercises that right.

[3] This Court takes the view that it is inconceivable that a member of the Legislature can be penalised by any ordinary legislation for exercising a fundamental right which the constitution expressly confers upon him subject to such restrictions as only Parliament may impose and that too on specified grounds and on no other.

[4] The Court also observed that Article XXX1A does not impose any restriction on the fundamental right of association of the plaintiffs under the Constitution because they were free to exercise it and it is only if they did so they would incur the disqualification from membership of the Legislature. On this, the Court is in agreement with the views expressed by the Court in Gunaratne’s case [1987] LR Com. 383 and Ghosli’s case (AIR SC 812).

[5] This Court recognises that as regards that part of the plaintiff’s case which alleged inconsistency between Article XXX1A of the Kelantan State Constitution and Article 10(1)(c) of the Federal Constitution, the alleged inconsistency must, first of all be identified.

[6] This primary declaration sought for in the present case was that Article XXX1A of the Kelantan State Constitution was inconsistent with Article 10(1)(c) of the Federal Constitution. If so, it would be void by reason of Article 4(1) of the Federal Constitution. No declaration had been sought that Article XXX1A was invalid on the ground that it related to a matter with respect to which the Kelantan State Legislature had no power to make law. In so holding this Court has taken into consideration the principles of legislative review enunciated in Ah Thian v. Govt. of Malaysia [1976] 1 LNS 3 [1976] 2 MLJ 112, 113.

[7] In all the circumstances, the learned Judge has arrived at the unanimous conclusion that the direct and inevitable consequences of Article XXX1A of the Kelantan State Constitution which is designed to enforce party discipline does impose a restriction on the exercise by members of the Legislature of their fundamental right of association guaranteed by Article 10(1)(c) of the Federal Constitution and that such restriction is not only protected by Article 10(1)(c) of the Federal Constitution but clearly does not fall within any of the grounds for disqualification specified under s. 6(1) of Part 1 to the Eighth Schedule to the Federal Constitution.

[8] This Court agrees with the learned Judge in the Court below though on somewhat different grounds that by virtue of Article 4(1) of the Federal Constitution, Article XXX1A of the Kelantan Constitution is to that extent void.

In a nutshell, the Supreme Court held that the anti-hopping laws which were enacted by the Kelantan State Government was null and void. An assemblyman is free to associate and / or disassociate himself with anyone or any party he deems fit and proper.

As a result, Nordin Salleh and Wan Najib were reinstated to their respective state assembly seats by the court and Article XXX1A had been rendered ineffective.

After almost 28 years we are today staring at the same legal question again albeit under different factual circumstances.

On 23.5.2020 two duly elected representatives from Bersatu namely Khaliq Mehtab and Zolkifli Lazim had withdrawn their support for the Pakatan Harapan political coalition and had thrown their support behind the Prime Minister Tan Sri Muhyiddin Yassin who is now a part of a new political bloc called Perikatan National. Khaliq Mehtab is the assemblyman for Bertam and Zolkifli Lazim is the assemblyman for Telok Bahang.

As the Penang state government is a committed member of the Pakatan Harapan coalition, the two elected representatives actions of throwing support behind the Perikatan Nasional bloc has been seen as an act of betrayal and the Pakatan Harapan-led Penang state government is now looking at tabling a motion at the next state legislative assembly sitting to compel the two elected representatives who withdrew their support for the Pakatan Harapan administration to vacate their seats.

Penang Chief Minister Chow Kon Yeow had been reported in the mass media to say that such action will be in line with Article 14(A)(1) of the Constitution of the State of Penang (Amendment) Enactment 2012 (hereinafter referred to as "Article 14(A)(1)”)whereby any defecting elected representative is required to vacate their seat.

But, legally can such an action hold water?

Can Article 14(A)(1) withstand the same challenge thrown at Article XXX1A?

Article 14(A)(1) principally states that a member of the State Legislative Assembly shall vacate his/ her seat if:

(a) Having been elected as a candidate of a political party, he resigns or is expelled from or ceases for any reasons whatsoever to be a member of that party; or

(b) Having been elected as an independent but later joins a political party.

It is clear from reading the article above, that in order for Article 14(A)(1) to be applicable a member of the state legislative assembly has to have been:

(a) Elected as a candidate of a political party; and

(b) If he resigns; or

(c) is expelled from; or

(d) ceases for any reasons whatsoever to be a member of that party; and / or

(e) if he is was elected as an independent but later joins any political party

(f) then he would have to vacate his seat.

From the onset, we can ascertain that there is a difference in the language deployed as between Article XXX1A and Article 14(A)(1) hence some might argue that the treatment of the articles therefore cannot be similar.

However, it is submitted that the difference in language is merely an argument on the semantics as the spirit of both the articles seek to render the right to associate and to disassociate "ineffective and illusory” wherein both the articles attach a punitive consequence to the exercise of freedom of association namely the vacation of the state assembly seat.

Many have also commented that 28 years have lapsed since the decision in the Article XXX1A case, perhaps it’s time that a fresh look be had with regards to Article 14(A)(1) as the bane of party hopping is threatening this country’s political stability. In fact, this is also the argument taken on by the proponents which want to see action taken against Khaliq Mehtab and Zolkifli Lazim.

However, such opinions might be misplaced. All one has to do is read the judgement of the Supreme Court whereby the court had clearly stated that political and / or policy considerations are not to be considered when seeking to decide on the constitutionality of such laws as those are the matters for the policy makers and not the courts.

In short, it is up to the Parliament to enact such laws and not the business of the judicial arm under the scheme of separation of powers. The Parliament using its wisdom must seek to amend the constitution. Hence, seeking for a different outcome just because there has been a lapse of time may simply be wishful thinking.

But it is not all doom and gloom for the supporters of Article 14(A)(1), it has to be stated that in coming to its decision the Supreme Court did refer to the Indian case of Mian Bashir Ahmad v. The State of Jammu & Kashmir (1982) AIR 26which was cited by the counsel for the Kelantan State Government and make the following observations, inter-alia:

"There are certain general observations we should like to make regarding Mian Bashir Ahmad’s case.

It is obvious from the judgment of the Acting Chief Justice that in upholding the validity of the impugned legislation he had placed great stress upon what he described as the post-independence history of prevalent political defections and their baneful effect in that they had threatened the functioning of parliamentary democracy in many parts of the Indian sub-continent. He emphasised with great clarity and detail, including the citation of many examples, that these political defections were not because of genuine prodding of conscience but because of personal aggrandisement and rank opportunism and had thus become a pernicious form of political corruption threatening the functioning of parliamentary democracy contemplated by the Constitution. It was against the backdrop of these events, he said that the impugned legislation was enacted into law. In the words of the Ag. Chief Justice:

Viewed on this background, it cannot be said that the object of the section is merely to curb dissent but the object, truly and properly understood, is to eradicate the evil of political defections in the State. In actual operation, however, the direct and inevitable effect of the section is that the legislator’s liberty to vote in the legislature is impaired and, moreover, he will not be able to leave his party habitat so long as he continues to be a legislator. It is in the light of that background that we have to consider the validity of the impugned legislation.

The position in this country cannot however be said to be similar to the position in India then, for the background events to which we have briefly referred have no parallel here. Certainly, no attempt whatsoever was made either by the introduction of evidence or even by way of argument to establish the contrary.”

The obiter above by the Supreme Court does in a way leave the proverbial door unlocked for the proponents of Article 14(A)(1), wherein it may be argued with the backing of sufficient evidence and examples that political defections of this nature were not because of genuine conscience but because of personal aggrandisement and that if not stamped out would create chaos in the Malaysian political scene leading to instability. The courts then may be persuaded to entertain a different outcome.

Whether this can be demonstrated to the courts in the case of Khaliq Mehtab and Zolkifli Lazim remains to be seen. No doubt, that the appointment of the two assemblymen to head government linked establishments will be relevant to determine this issue.

Notwithstanding, the advocate of this argument must still displace the legal reasoning of the Supreme Court which had stated that:

"In any event, it is axiomatic that the highest of motives and the best-known intentions are not enough to displace constitution obstacles, so that the background events which led to the passing of the impugned legislation in Jammu and Kashmir are, with all due respect to the Ag. Chief Justice, irrelevant to the question of its constitutional validity.

It is not difficult to cite an anthology of cases for this proposition; suffice if we refer to the following cases.

In Amalgamated Society of Engineers v. Adelaide Steamship (1920) 28 CLR Knox, Chief Justice speaking for the High Court of Australia, said at p.152, thus:

"Therefore, the doctrine of political necessity, as a means of interpretation, is indefensible on any ground.”

As such, one should have no illusions about it, while the proverbial door is left unlocked but it is surely shut tightly by the Supreme Court.

Additionally, in order for Article 14(A)(1) to weather the challenge from the perspective of the Federal Constitution, it must be shown that its promulgation "was not intended to penalise by any ordinary legislation the exercising of a fundamental right which the constitution expressly confers upon the subjects” as held by the Supreme Court.

A challenge may also be mounted to argue that the Penang State Legislative never had the power to promulgate such laws in the first place as Article 10(2)(c) of the Federal Constitution only empowers the Parliament to enact laws to curb the freedom of association and that also in limited scenarios as prescribed therein. Henceforth, the state government and / or state legislative assembly could have been ill advised when they tabled and passed the enactment in the first place as they were acting ultra vires of their authority.

It is equally important to state here, that any action against Khaliq Mehtab and Zolkifli Lazim will face further legal and factual complications as the two did not technically "hop” and / or resign as party members, it is the party’s leadership which had changed, the political party’s change in stance cannot be attributed to the two assemblymen who are merely towing party lines or directions to form a collective voice. To make things worse, the Bersatu leader aligned to the state government had been sacked by his own party and is currently seeking to challenge his dismissal in court. All this are relevant considerations for the courts to consider in the event this matter is litigated.

Nevertheless, as it stands, it’s all up in the air at the moment, the legal and political saga continues and those interested wait with bated breath for an outcome as to how it will all end but at the moment the odds are stacked against Article 14(A)(1).

Sadly, Penang’s version of the anti-hopping law may just be impotent.

*Reza Rahim is an advocate & solicitor of the High Court of Malaya and is currently practising law at Messrs. Reza Rahim &Rajivan.

** This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.