Monday, November 5, 2012

Is Penang's Anti-Hopping Law Unconstitutional?

Penang had just passed an anti-hopping law by way of an amendment to the Penang State Constitution that provides for a member of the State Assembly to vacate his/her seat when he/she leaves or is expelled from his/her political party upon which he/she had stood and been elected.


This is interesting in the light of Malaysian politics and democracy, where there had been instances in the past where state assemblymen and women had jumped ship (for one reason or another, mostly selfish monetary ones) and caused the fall of duly and democratically elected state governments like what happened to Sabah in 1994 and Perak in 2009


I guess Penang wanted to ensure that the democratic principle of sovereignty of people's choice of who forms the government of the day is not hijacked by unprincipled politicians on the look out only for their narrow self-interest.

The Penang government's move is a laudable one, but it is likely to face opposition as being unconstitutional.

No less than two prominent legal minds had said so.

UiTM Emeritus Professor of law Datuk Shad Faruqi, an expert in constitutional law, had said that the Penang state anti-hopping law contravened the people's constitutional right of association as per Art 10(1)(c) of the Federal Constitution and in light of the Supreme Court (now the Federal Court) decision in the Dewan Undangan Kelantan & Anor v Nordin Bin Salleh & Anor case concerning a similar Kelantan state anti-hopping law.

Even DAP's own parliamentarian and legal giant Karpal Singh, had said that the Penang anti-hopping law could not stand on its own and that he would try to move a Private Members Bill to amend the Federal Constitution to allow for the anti-hopping law.

Karpal is not likely to succeed because the Barisan coalition would unlikely agree and the Pakatan coalition does not have the 2/3 majority needed for the amendment to the Federal Constitution.

Well, what do I say? I say Penang should just  keep the law and let it be challenged.

Who knows, a new corum or panel of judges of the Federal Court may decide to depart from the earlier decision of the court in the Kelantan case. I am not too optimistic though, because our judges and courts are not known for being progressive, but no venture no gain.

I don't want to go into legalese or too much legal technicalities as this will bore readers and no less myself, and will stop me from quickly getting to what I want to say.

The objective of the anti-hopping law to prevent the undermining of parliamentary democracy that it is the people who determine who forms the government of the day is sufficient reason to restrict the exercise of an otherwise fundamental right as that of the right of association.

That much can be gleaned form the judgement of the Indian case of Mian Bashir Ahmad v The State itself. although the court there actually held that the anti-hopping law did not violate the constitutional  right of association.

No comments:

Post a Comment

Video Bar

Loading...

Kluang's Little Bangsar

Kluang's Little Bangsar
Click To Visit

Kamini's Indian Wedding - Click To Visit

Kamini's Indian Wedding - Click To Visit
I attended my neighbour's daughter's Indian wedding dinner at the Sentul HGH Convention Centre. Click for a peek

Yasmin Ahmad - Click To Visit

Yasmin Ahmad - Click To Visit
Yasmin Ahmad was arguably Malaysia's best story-teller, filmmaker and advertiser. She was well known for her Petronas commercials and had won numerous international awards including the Golden Lion award for the 'Tan Ming Hong In Love' commercial. Her feature film Sepet not only garnered her several international awards including for Best Asian Film but also drew multi-racial audiences that rarely happens for a local film.

Genting Highlands - Click To Visit

Genting Highlands - Click To Visit
Genting Highlands Is A Popular Retreat With A Casino

Batu Caves - Click To Visit

Batu Caves - Click To Visit
Malaysia's Famous Landmark. Note The Statue Of Lord Muruga And The 272 Steps To The Temple Cave In The Background

Petronas Twin Towers And KLCC Park - Click To Visit

Petronas Twin Towers And KLCC Park - Click To Visit
Petronas Twin Towers Are Still The World's Tallest Twin Towers

Some Early Morning Views Of KL City Skyline - Click To Visit

Some Early Morning Views Of KL City Skyline - Click To Visit
Some early morning views of the KL city sykline I took from the 3rd floor of the KL Court with a low-pixel hand-phone camera

Kluang Town - Click To Visit

Kluang Town - Click To Visit
Kluang was a sleepy hollow, but is fast becoming a bustling town. You can't miss the bust-shaped gunung Lambak lording over the place and the town is well known for its tv brand coffee powder

Kluang RailCoffee

Kluang RailCoffee
The Kluang railway station coffee shop, now re-branded Kluang RailCoffee, is well known for its cuppa of coffee and the charcaol grilled piping hot buns oozing with butter and kaya...It used to attract standing-room only crowds. It still does, but the last time I was there it wasn't a good experience for me. The famous coffee had somewhat lost its oomph and even the buns...The shop has a long and noted history being first opened for business in 1938 and the place is now run by the 3rd generation LIm family. I hope the next time I return, the coffee would regain its oomph. Click to read more...