UMNO’S threat to sue lawmakers who quit the party will not stand in the court of law, as a Federal Court ruling states that a seat belongs to its elected rep, said lawyers.

Senior lawyer Mohamed Haniff Khatri Abdulla said the 1993 apex court decision in the Nordin Salleh v Kelantan assembly case affirmed that a seat does not belong to any party.

“As much as we want to believe that a seat belongs to a party, unfortunately, it is not so under the Malaysian constitution and law,” he told The Malaysian Insight.

“It belongs to the individual, and when the individual does something like defect, yes, questions of morality, ethics and trustworthiness come in, and that is for the voters to decide on, and not for the party to say, ‘it belongs to us’.”

He was referring to Umno president Ahmad Zahid Hamidi’s remarks made at the party’s general assembly over the weekend, saying the party will take legal action against those who quit and became independent MPs and assemblymen.

He told delegates that the party will send a writ of summons to such individuals, demanding that they repay the party all costs and vacate their seats, which were won on the Umno ticket in the 14th general election.

In the case of Nordin, the former Sg Pinang assemblyman had challenged the constitutionality of the 1991 Kelantan charter amendment, which disqualified any assemblyman who quit the party he won the seat for.

The high court and, later, Federal Court held the state’s law to be unconstitutional, as it violated the guarantee of freedom of association as provided for by Article 10(1)(c) of the federal constitution.

Haniff said Umno may take legal action only if a contract had been signed between the party and elected representatives, and if the amount the party claims to have spent on the said reps does not exceed that which is allowed by the Election Commission for polls campaign expenditure.

“Every party is known to have warned members that if you win, you cannot defect.

“That is why before the elections, there was a suggestion in the then opposition Pakatan Harapan to put in a contract that defectors should pay for the cost of the elections.”

Former Universiti Malaya law professor Gurdial Singh Nijar agreed that a precedent had been established by the Federal Court in 1993 – that a lawmaker has the right to quit his party without incurring any liability, as it is his fundamental right to do so.

“The Federal Court, in the Nordin Salleh ruling, held that you cannot prevent an elected rep from vacating his seat and abandoning his party. Doing so violates the fundamental right of association in Article 10 (of the federal constitution).”

As such, said Gurdial, who is also National Human Rights Society president, a person who leaves a party can say he cannot be prevented from exercising his right.

“This means he cannot be sued. It also means that the threat by the Umno president to sue is against the law,” he told The Malaysian Insight.

To date, five MPs and 13 assemblymen have dumped Umno since the party lost federal power in the May 9 polls.

The most prominent leaders to have quit are former ministers Mustapa Mohamed and Anifah Aman. Both have cited unhappiness with the party’s direction post-GE14. – October 1, 2018.