Cross-overs: Are they legal?

Press Statement: The Bar is apolitical

The Bar Council refers to the statement by UMNO Youth's Datuk Abdul Rahman Dahlan reported at page 4 of the Star dated 8 September 2008 in relation to the issue of "cross-overs".
The Bar never participates in party politics nor in partisan politics. Thus, the Bar has deliberately declined to comment on the political issues facing the nation. Nonetheless, the public goading by the Datuk Abdul Rahman Dahlan and queries by the Press have necessitated a response. Hence, this comment is strictly limited to the legal issues raised by the subject of political cross-overs.

Cross-overs are not new in Malaysia. The law of the land in relation to "cross-overs" has long been settled in the case of Dewan Undangan Negeri Kelantan & Anor v Nordin Salleh & Anor decided in 1992 by a 5-member panel of the Supreme Court, our highest Court. The Court struck down provisions of the Constitution of the State of Kelantan that sought to prevent such cross-overs on the basis that it offended the fundamental right to freedom of association enshrined in Artcle 10 (1) (c) of the Federal Constitution.

In the case of Nordin Salleh, the plaintiffs were elected to the Kelantan State Assembly during the 1990 General Elections on the PAS ticket. The plaintiffs subsequently resigned their memberships in PAS, and joined the Barisan Nasional. The Supreme Court decision upheld the constitutional right of the Plaintiffs to "cross-over" to Barisan National and held that the right to freedom of association under the Federal Constitution includes the right to disassociate. Similar situations have arisen in the State of Sabah in 1994 when members of the Sabah State Assembly from the PBS crossed over to Barisan Nasional thereby reversing the original majority in favour of the PBS to the Barisan Nasional.

As it stands therefore there is no legal impediment to "cross-overs" by members of political parties.

Dato' Ambiga Sreenevasan
President
Malaysian Bar
9 September 2008