S’wak’s own Anti-Hopping Law has always been constitutional — Fong
KUCHING: Sarawak’s very own Anti-Hoping Law (AHL) has always been constitutional, said state legal counsel Dato Sri JC Fong.
According to him, this is because the AHL under clause 7 of Article 17 of the State Constitution was passed by the State Legislative Assembly (DUN) in 1994.
Fong said this following a recent Federal Court finding that Penang’s AHL is constitutional.
“Our existing anti-hopping constitutional provisions mirror that of the Penang version, which the Federal Court ruled constitutional,” he explained to The Borneo Post.
“It is now up to the state government whether it wants to retain the current wording or use the new constitutional provisions passed recently by Parliament.”
Both the current and new versions have the same effect as a deterrent against party hopping, he said.
He pointed out the Sarawak provisions, like the Penang version, deals with qualifications of membership of the legislature, which the legislature has powers to enact to determine who is qualified or disqualified from membership.
According to him, it has nothing to do with freedom of association under Article 10 of Federal Constitution as explained by the Federal Court.
He said anyone is free to change parties but if he does so, he loses his seat to which he was elected under that party’s ticket.
“None of these freedoms guaranteed under Part II of FC are absolute. Freedom of speech means you can speak freely but if you say something slanderous you could be sued for libel under the Defamation Act,” he said.
“Likewise, you can associate and disassociate with any political party. But if you are elected on a party ticket and later you change party, the AHL which protects parliamentary democracy results in you being disqualified as a member of the legislature.”
Fong said it is up to the elected representative concerned to decide on changing party affiliation.
“The freedom for him to decide on whether to party hop is still there.
“This is why I have always said that the Supreme Court decision in Kelantan State Legislative Assembly v Nordin Salleh (1989), which held anti-hopping provisions in the Kelantan Constitution as unconstitutional, to be wrongly decided,” he said when explaining why Sarawak’s very own AHL had been claimed to be unconstitutional all this while.
On Aug 3, Bernama reported that the Federal Court’s sevenmember bench had ruled that a provision under the Penang AHL is valid and constitutional.
Chief Justice Tun Tengku Maimun Tuan Mat, who chaired the panel, said Article 14A of the
Penang State Constitution is not void as it is consistent with Article 10(1)(c) of the Federal Constitution (in regards freedom of association).
However, Article 14A of the Penang State Constitution states that a state assemblyman shall vacate his seat if having been elected as a candidate of a political party, he resigns or is expelled from a party or having been elected otherwise than as a candidate of a political party, he joins a political party.
Tengku Maimun was quoted as saying, “It is our view that the terms for qualification of membership in the House or a State Assembly are matters which pertain to parliamentary democracy and do not concern the individual elected representative’s personal right or choice to associate with a certain political association or party under Article 10 (1)(c) of the Federal Constitution.
“For these reasons, we find that the Nordin Salleh’s case 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.”
Tengku Maimun said the court was of the view that once an elected representative had succeeded in an electoral contest on the ticket that he sought, he had exercised his right of association by contesting on that ticket.
“Once he is in the House or 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, he stands on upon having been given the mandate by the electorate that entrusted to him that position,” she said.
“Based on the foregoing, the sole constitutional question, as indicated earlier, is answered in the negative,” she said when delivering the decision.
The much-awaited Federal AHL was approved by Dewan Negara on Tuesday when 52 out of 60 Senators, or more than twothirds of them, supported it after two bloc votes.
Dewan Negara president Tan Sri Rais Yatim said seven Senators were not present during voting.
The Constitution (Amendment) Bill (No. 3) 2022 (on AHL) needs to be given the Royal Assent prior to its immediate enforcement.
When contacted, Minister in the Prime Minister’s Department (Parliament and Law) Dato Sri Wan Junaidi Tuanku Jaafar said he is confident that the law could be enforced in the middle of September.
When winding up the Bill in the Dewan Negara on Tuesday, Wan Junaidi had said Prime Minister Datuk Seri Ismail Sabri Yaakob will instruct state governments to amend their respective state constitutions in line with the AHL.