How will BN introduce an anti-hopping law in Melaka? — Hafiz Hassan

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NOVEMBER 23 — After the big win in the Melaka State Election on Saturday, the Barisan Nasional (BN) coalition intimated its intention to enact an anti-party hopping law when the state legislative assembly convenes.

I pose this question: how will BN propose to enact the anti-hopping law?

Umno president Datuk Seri Ahmad Zahid Hamidi delivers his speech after Barisan Nasional was declared winner of the Melaka state election in Ayer Keroh November 20, 2021. ― Picture by Ahmad Zamzahuri
Umno president Datuk Seri Ahmad Zahid Hamidi delivers his speech after Barisan Nasional was declared winner of the Melaka state election in Ayer Keroh November 20, 2021. ― Picture by Ahmad Zamzahuri

And this question as well: will Melaka be the third former Straits Settlements after Singapore and Penang to enact an anti-hopping or anti-defection law?

It must be said that Penang was not the first state in Malaysia to enact an anti-hopping law. Kelantan had introduced an anti-hopping provision into the state’s constitution in 1991.

Article XXXIA(1) provided that 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.”

In the oft-referred case of Dewan Undangan Negeri Kelantan & Anor V Nordin Bin Salleh & Anor [1992] 1 MLJ 697I, the Supreme Court (as it then was) ruled that Article XXXIA of the Kelantan State Constitution imposed a restriction on the membership of a legislative assembly which infringed a citizen’s right to form associations under Article 10(1)(c) of the Federal Constitution.

Such a restriction could not, by any stretch of the imagination, be deemed necessary or expedient in the interest of the Federation or any part thereof, public order, morality or even labour or education.

Since the state constitutional provision was inconsistent with the Federal Constitution, which is the supreme law of Malaysia, it was therefore void under Article 4(1) of the Federal Constitution.

The Supreme Court further ruled that 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.

Even if the restriction imposed by Article XXXIA of the Kelantan Constitution was valid (which it was not), it could not be imposed by a law passed by a state legislature and as such Article XXXIA should be invalidated. (See Reza Rahim, ‘Freedom of association: From Nordin Salleh to Khaliq Mehtab’ available here.)

Four Penang state assemblymen — Zulkifli Ibrahim (Sungai Acheh), Dr Afif Bahardin (Seberang Jaya), Zolkifly Md Lazim (Teluk Bahang) and Khaliq Mehtab Mohd Ishaq (Bertam) — have challenged the state’s anti-hopping law in Article 14A(1) of the State Constitution.

According to Malay Mail reports, the court proceedings will come up for case management on November 26.

The Kelantan anti-hopping law has been ruled to be unconstitutional. The law in Penang is currently a subject of legal challenge.

So, again, how will BN introduce an anti-hopping law in Melaka?

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

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