Adopting Indian anti - defection law in the context of Perak crisis and Federal Constitution

Proposals for anti-defection laws have been made in Malaysia in 2008 by the then Minister in Prime Minister’s Department, Zaid Ibrahim. The urgency for anti-defection law in the Malaysia is imminent due to defections that led to the fall of state government.

Anti - defection laws are currently used in countries such as India, South Africa, Zambia and Portugal.

In India, provisions for anti – defection laws is provided for in the tenth schedule of the Indian constitution. The tenth schedule disqualifies an Indian elected representative on the following grounds:
a) if he has voluntarily given up his membership of such political party; or
b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. (http://haryanaassembly.gov.in/WriteReadData%5CExtraLinksInformation%5CAntiDefectionLaw.htm)

Going by the above grounds, two members of parliament, S Sothinathan (MIC – BN), and Shahrir Samad (UMNO – BN) can be disqualified for voting contrary to the interest of the party. Shahrir Samad supported a motion moved by Lim Kit Siang in the previous assembly session. He quit as BN Backbencher Club chair subsequently. S Sothinathan was suspended from his responsibility as deputy minister when he supported opposition motion over the issue of not recognising medical degrees from Russian universities.

Applying clause 2 of the Indian anti – defection law to the Perak crisis would have solved the issue altogether as it reads as the following:
An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election.
Amendments made to in 2003 the Indian anti – defection law disallows block defections thus the Indian model of anti – defection law.

Applying the Indian law to the context of the Perak crisis, the disqualification of the four ADUN cannot be challenged in the court of law as the courts shall have no jurisdiction in respect to matters connected to disqualification of a member of the House.

On a larger scale a complete adoption of the Indian anti – defection law which includes the Constitution (91st Amendment) Act 2003 (http://lawmin.nic.in/legislative/press-release.htm) would not create a problem for the incoming Najib government as it restricts the number of Cabinet members to just 33.

Having shown the compatibility of the Indian anti – defection law in the context of Malaysia, I would now turn my attention to the Federal Constitution since no acts contradicting Federal Constitution can be law in Malaysia as stipulated in Article 4.

Unfortunately though, Professor of Law in University of Malaya Dr Azmi Sharom stated (NTV7 8pm News, 9 February 2009) that application of “anti-hopping laws” contravenes Article 10 in the constitution.

Article 10 of the constitution reads as the following:
(1) Subject to Clauses (2), (3) and (4) -
a) every citizen has the right to freedom of speech and expression;
b) all citizens have the right to assemble peacefully and without arms;
c) all citizens have the right to form associations

I beg to differ from the opinion of Dr Azmi Sharom as it his arguments are more suited to be used controversial acts such Internal Security Act (ISA) 1960. If ISA can be accepted along side the Federal Constitution, so can anti defection law.