KUALA LUMPUR, Sept 21 — Datuk Seri Mohamed Nazri Abdul Aziz proposal to amend the Election Commission Act 1957 to end the political defection menace must be accompanied by a change to the Federal Constitution, said two lawyers.
The former minister handling the law portfolio told Malay Mail in a recent interview that his proposal from July has gained the provisional support from the parliamentary whips of all major political parties.
The lawyer by training also insisted that the amendment alone would be sufficient to realise his proposal for political parties rather than individuals to contest elections directly.
However, lawyers Nizam Bashir and Sivahnanthan Ragava disagreed.
Nizam told Malay Mail that Nazri’s proposal could violate Article 10(1)(c) of the Federal Constitution that guarantees the freedom of association.
“The proposed amendments appear to place restrictions on the right of citizens to dissociate as they see fit,” he said.
He acknowledged that Parliament may pass laws that could violate some constitutional rights, but noted that the Article 10(2)(c) of the Federal Constitution limited these to matters involving national security, public order or morality.
However, Nazri told Malay Mail previously that his proposal effectively avoided infringing on the freedom of association as it did not limit any individual from leaving a party. Instead, he proposed to make political parties the holders of seats rather than lawmakers.
When asked if this could work, Nizam said it depended on how the law would be phrased.
“Keep in mind that the Elections Act 1958 and the Election Commission Act 1957 generally contain provisions to regulate elections and the administration of elections. It does not, at least in its present incarnation, regulate conduct of candidates post-elections. So let’s wait for the proposed amendments to see the day of light before commenting on it in greater detail.
“In the interim, I am minded to adhere to the views expressed by the Supreme Court in Dewan Undangan Negeri Kelantan & Anor vs Nordin bin Salleh & Anor  1 MLJ 697.
“Keep in mind as well that there are other proposals being bandied about with the aim of preventing party hopping or political defections. The immediate one that comes to mind would be recall elections and even ones which involve amending the Federal Constitution. Hopefully the final incarnation of this proposal will be one that best achieves the objective of eradicating party hopping or political defections,” he added.
In the case cited to justify party-hopping, the Supreme Court (now the Federal Court) found that a provision of the Kelantan Constitution was in contradiction with Article 10(1)(c) of the Federal Constitution.
The Kelantan Constitution provides for the seat of a member of the State Legislative Assembly to be vacated if he/she ceases to be a member of a particular political party, but the court found that one’s freedom of association includes their right to dissociate, and rules that it would be unconstitutional for the state to impose a sanction on practicing such rights.
Sivahnanthan also said a constitutional amendment would be needed to realise Nazri’s proposal.
“At the end of the day, the Federal Constitution is the supreme law of Malaysia. If any laws made in Malaysia are against the Federal Constitution, then that particular law would be deemed unconstitutional. We have to amend not only the EC Act but also the Federal Constitution,” he said.
Short of a constitutional amendment, he said the legality of Nazri’s proposal would remain in doubt until a case is decided at the Federal Court.
However, the Malaysian Bar’s Constitutional Law Committee co-chairman, Andrew Khoo, agreed with Nazri that amending the EC Act alone would suffice.
Khoo explained that while freedom of association is provided for in the Federal Constitution, the same clause also allows for Parliament to pass laws to restrict that right.
“So the provision for a law to limit or to restrict that right, is already in the Constitution.
“And then there is a proviso. Provided that Parliament may by law limit or restrict the exercise of these rights for certain reasons. So Datuk Seri Nazri being a lawyer, is not wrong. There is no need to change the Constitution, because the power to limit is already there.
“So in other words, when you talk about law here, you’re talking about an Act of Parliament. Not amending the Constitution. So they can introduce a law,” Khoo told Malay Mail.
He then pointed to the situation when the Parliament had in 2012, passed the Peaceful Assembly Act (PAA).
“So what the government would have said was that this is a law which affirms your right but it also imposes certain restrictions.
“So if Datuk Seri Nazri says you don’t have to change the Constitution, I would agree, but then you have to look at the law and catch the restrictions in the law, against the provision of the Constitution,” he said, adding that this was what happened in the case of Dewan Undangan Negeri Kelantan & Anor v Nordin Bin Salleh & Anor.
However, he also noted that Nazri’s proposed amendment would remain vulnerable to legal challenge.
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