Defectors’ dilemma: To resign or not?

Article 17 (5) of the Constitution of the State of Sabah states that an elected member who resigns is disqualified from re-contesting for five years.

COMMENT

We were asked to give our perspective on whether elected representatives who shifted their political allegiance should vacate the seats in the Sabah State Legislative Assembly which they had won under a particular political party to make way for by-elections.

This public outburst started when Hiew King Cheu the elected state assemblyman for Luyang ditched the DAP on Sept 27 and was followed by assemblymen for Kadamaian and Matunggong, Ukoh @ Jeremmy Malajad @ Malazad together with Jelin Dasanap @ Jelani Hamdan both from the PKR on Nov 4 and Nov 8 respectively. Jelani however was unsure whether he was a PKR member in the first place.

Worthy of note is that the thunderous noise of resentment to challenge these three assemblymen to resign their seats and test the popularity of their decisions.

The calls came primarily from their former political parties which they have betrayed and not from the public whose silence is equally deafening.

Without further ado we bring the attention of readers to Article 48 (6) of the Federal Constitution which reads: “A person who resigns his memberships of the House of Representatives shall, for a period of five years beginning with the date on which his resignation takes effect, be disqualified from being a member of the House of Representatives”.

In the above provision it is clearly written that if a Member of Parliament resigns his seat in the Dewan Rakyat, he is ineligible to be an MP for a space of five years from the effective date of his departure; in other words, it is impliedly stated that he is barred from re-contesting any vacant seats for five years.

This proviso is also found in Article 17 (5) of the Constitution of the State of Sabah which states: “An elected member who resigns his membership of the Legislative Assembly of this State … shall, for a period of five years beginning with the date on which his resignation takes effect, be disqualified from being elected as an elected member of the Legislative Assembly of this State”.

Reading and comparing the two articles together, even though not identical, the meaning and intention of the supreme laws of the Federation and of the State of Sabah are substantially the same; and that is, if an elected assemblyman resigns his state seat, he is barred from re-contesting for five years.

Coming back to the challenges thrown by both DAP and PKR  to Hiew and the other two assemblymen respectively, how are the three of them going to know whether their respective electorates approve of their party hopping if all three of them are barred by the laws of this land from re-contesting their vacated seats once they have resigned from the same?

Anti-hop

In another related issue, the highest court of law in the federation had more than once struck out the Anti-Hop laws enacted in this state and similar legislation elsewhere in Malaya because it contravened the provisions of Article 10 (1) (c) of the Federal Constitution which reads: “all citizens have the right to form associations”.

The Anti-Hop laws which declare vacant the seat of the elected representative who party-hop to compel a by-election was ruled by the apex court as unconstitutional, ultra vires the Federal Constitution, null and void, and of no effect.

As such it is our opinion that the bombastic challenge issued by the DAP and PKR to the trio demanding their resignations and daring them to re-contest the vacated seats are issued by naïve morons who are ignorant of the country’s laws and constitutional rights of the renegade trio.

In short, the three rebel assemblymen might have a moral duty to resign their seats; but, legally speaking, they are constitutionally not required to do so.