UMNO’S suit against three of its former lawmakers for defecting to Bersatu will likely fail due a 30-year-old legal precedent, a constitutional expert said.

Gurdial Singh Nijar said in the 1992 case, the Federal Court ruled against PAS in its suit against a party member who defected to Umno.

Umno now seeks to do the same to its former members and will likely get the same result, he said.

“There is freedom of association as the Federal Court decided on in the Nordin (Salleh) case,” he told The Malaysian Insight, referring to a 1992 decision by the apex court that party-hopping is not unlawful.

Umno and Barisan Nasional filed a writ of summons against former members, Mustapa Mohamed (Jeli), Hamzah Zainudin (Larut) and Ikmal Hisham Abdul Aziz (Tanah Merah) for going over to Bersatu.

Court papers showed that the legal action was brought by Umno executive secretary Mohd Sumali Reduan on behalf of the Malay party and Abu Khamis on behalf of Barisan Nasional.

The suit seeks a court declaration that the defendants have committed a breach of trust and that they have been unjustly enriched in the process.

It also seeks compensation of RM200,000 from each defendant.

Umno president Ahmad Zahid Hamidi also yesterday reiterated that legal action is being taken against the leaders who won their parliamentary seats under the party ticket in the last general election. 

In the 1992 case, the court ruled against the PAS government of Kelantan suing assemblyman Nordin Salleh for crossing over the Umno.

The court ruled that Nordin had freedom of association guaranteed under Article 10 of the constitution.

“This will be an interesting suit,” said civil liberty lawyer Syahredzan Johan. “We know that in the case of Dewan Undangan Negeri Kelantan v Nordin Salleh, the Supreme Court held that anti-hopping laws are unconstitutional.”

Syahredzan, who is political secretary to DAP adviser Lim Kit Siang, said the cases are similar except for the fact that the 1992 case involved a state government.

“The courts have held that constitutional rights apply ‘vertically’ instead of ‘horizontally’. What this means is that constitutional rights can only be invoked against the state, and not against private entities or individuals.

“What about a political party like Umno? Is it considered a private entity or can (the ruling) apply as it carries out public functions. These are interesting questions.”

Penang is the only state with anti-hopping laws, which dictate that an assemblyman must vacate his seat if he leaves the party.

Bukit Gelugor MP Ramkarpal Singh previously said such laws could violate the federal constitution which allows freedom of association.

In December, however, Ramkarpal called for the constitution to be amended to make it illegal for lawmakers to switch parties. 

This followed a spate of defections from Umno to Bersatu, causing concern among other Pakatan Harapan allies.

Bersatu now has 26 lawmakers in the Dewan Rakyat, up from the 13 seats it won in the May 9 polls last year. – August 19, 2019.