Lawyer on why Bagan Serai MP can’t resign and contest by-election

Bagan Serai MP Dr Noor Azmi Ghazali is staying an independent for now after leaving BN but may join PPBM. (Facebook pic)

PETALING JAYA: Bagan Serai MP Dr Noor Azmi Ghazali cannot resign and contest again in a by-election to prove his popularity due to restrictions in the Federal Constitution, says lawyer R Kengadharan.

He said Article 48 (6) of the Federal Constitution states that an MP who vacates his public office is disqualified from contesting for five years.

“Azmi cannot possibly resign and contest again in a Bagan Serai parliamentary by-election due to this provision in the law,” he told FMT.

Kengadharan said this in response to the challenge issued by Perak Umno liaison committee chairman Zambry Abdul Kadir for Azmi to resign and contest again to prove that it was his popularity, rather than his BN candidacy, that had won him the seat in the May 9 general election.

Azmi retained the Bagan Serai seat with a majority of 172 votes in a three-cornered contest that also involved candidates from PPBM and PAS.

At a press conference in Bagan Serai on Sunday, Azmi said he would be an independent MP for now but indicated he may join PPBM later.

Zambry said Azmi’s decision showed that he only cared for himself.

Kengadharan said the constitution should be amended to allow MPs or assemblymen who crossed over to another party or became independent to vacate their seats and allow them to recontest to prove their worth.

“This way, they will know whether voters cast their ballots for the individual candidate or the party they represented,” he added.

Kengadharan said defection to another party was now legal as the apex court in Malaysia had declared anti-hopping laws are unconstitutional.

This was the result of a ruling by the then Supreme Court of Malaysia which interpreted the constitution and declared that crossing over to another political party amounted to freedom of association.

In the 1992 ruling, the bench interpreted the right to association included the freedom to disassociate.

In that celebrated case, Nordin Salleh (Sungai Pinang) and Wan Mohamed Najib Wan Mohamaed (Limbongan) won their state seats under the then Semangat 46 ticket in the 1990 general election.

However, both defected to Umno in 1991. The Kelantan state assembly amended the state constitution and then passed an anti-hopping law that took retrospective effect from Nov 18, 1990.

As a result, the Speaker declared the seats vacant. Both men contested the seats again in the ensuing by-elections but lost.

The Supreme Court said the amendment breached Article 10 of the Federal Constitution which guarantees freedom of association.

Nordin and Wan Mohamed were then reinstated as assemblymen.