Anti-Defection Provisions in Selected Countries

1. Bangladesh

Article 70 of the Constitution of the People’s Republic of Bangladesh:[1]

“A person elected as a member of Parliament at an election at which he was nominated as a candidate by a political party shall vacate his seat if he –

(a) resigns from that party ; or

(b) votes in Parliament against that party ;

but shall not thereby be disqualified for subsequent election as a member of Parliament.”

2. Belize

Article 59(2)(e) of the Belize Constitution Act:[2]

“A member of the House of Representatives shall also vacate his seat in the House

(e) if, having been a candidate of a political party and elected to the House of Representatives as a candidate of that political party, he resigns from that political party or crosses the floor.”

3. Fiji

Article 63(1) of the Constitution of the Republic of Fiji:[3]

“The seat of a member of Parliament becomes vacant if the member—

            …

(g) resigns from the political party for which he or she was a candidate at the time he or she was elected to Parliament;

(h) votes or abstains from voting in Parliament contrary to any direction issued by the political party for which he or she was a candidate at the time he or she was elected to Parliament, without obtaining the prior permission of the political party; or

(i) is expelled from the political party for which he or she was a candidate at the time he or she was elected to Parliament and—

(i) the expulsion was in accordance with the rules of the political party relating to party discipline; and

(ii) the expulsion did not relate to any action taken by the member in his or her capacity as a member of a committee of Parliament.”

4. India

Item 2 in the Tenth Schedule to the Constitution of India:[4]

“… a member of a House belonging to any political party shall be disqualified for being a member of the House—

(a) if he has voluntarily given up his membership of such political party; or

(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.”

5. Malawi

 Article 65(1) of Malawi’s Constitution:[5]

 “The Speaker shall declare vacant the seat of any member of the National Assembly who was, at the time of his or her election, a member of one political party represented in the National Assembly, other than by that member alone but who has voluntarily ceased to be a member of that party or has joined another political party represented in the National Assembly, or association or organization whose objectives or activities are political in nature.”

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6 Things About The Presumption of Constitutionality

1. Applies in favour of the constitutionality of an Act of Parliament/State enactment

In Public Prosecutor v Su Liang Yu [1976] 2 MLJ 128, Hashim Yeop A Sani J (later Chief Justice of Malaya) held:

“There is always a presumption in favour of constitutionality of an enactment and the burden is upon him who attacks the enactment to show that there has been a clear transgression of the constitutional principles.”[1]

2. Applies to all Acts of Parliament

The Federal Court in Rovin Joty a/l Kodeswaran v Lembaga Pencegahan Jenayah & Ors and other appeals [2021] MLJU 195 remarked that:

“There is a presumption of constitutionality in every legislation passed by Parliament.”[2]

3. Is premised on the understanding that Parliament is deemed better placed than the Courts to determine social policy as parliamentarians are democratically elected and represent the will of the people

Azahar Mohamed CJ (Malaya), in delivery the majority decision in Letitia Bosman v Public Prosecutor and other appeals (No 1) [2020] 5 MLJ 277 held:

“The presumption of constitutionality exists because Parliament is deemed better placed than the Courts to determine social policy. Parliamentarians are democratically elected and represent the will of the people.”[3]

4. A manifestation of judicial deference in the exercise of constitutionally derived powers

In Rovin Joty a/l Kodeswaran v Lembaga Pencegahan Jenayah & Ors and other appeals [2021] MLJU 195, Zabariah Mohd Yusof FCJ opined the following:

“The presumption of constitutionality is a manifestation of judicial deference in striking down laws passed by Parliament or to impugn executive action insofar as the exercise of constitutionally derived powers are concerned.”[4]

5. Cannot be carried to the extent or stretched to for the purposes of validating an invalid law

Eusoffe Abdoolcaader J (later SCJ) held in Public Prosecutor v Datuk Harun bin Haji Idris & Ors [1976] 2 MLJ 116 (“Datuk Harun”):

“… the presumption is not however to be carried to the extent or stretched for the purpose of validating an otherwise invalid law, and if the force ofArticle 8(1) bears sufficiently strongly upon and against that presumption, it must then necessarily bend, break and give way under that force.”[5]

The Federal Court in Letitia Bosman v Public Prosecutor and other appeals (No 1)  [2020] 5 MLJ 277 shared a similar view when it held:

“… that is not to say that the presumption is unassailable. The presumption of constitutionality cannot be applied to render a law that is invalid, valid.”[6]

6. Burden to disprove the presumption lies on the party presenting the challenge

This is the trite position as seen in Datuk Harun:

“there is a presumption – perhaps even a strong presumption – of the constitutional validity of the impugned section with the burden of proof on whoever alleges otherwise.”

The above extract in Datuk Harun was referred to favourably by the Supreme Court in Public Prosecutor v Pung Chen Choon [1994] 1 MLJ 566.[7]

Both Datuk Harun and Pung Chen Choon were relied on by the Federal Court in Rovin Joty a/l Kodeeswaran v Lembaga Pencegahan Jenayah & Ors and other appeals [2021] MLJU 195 on this point.[8] (more…)

Teh Cheng Poh & the Method of Revoking a Proclamation of Emergency and its Ordinances

In Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50 (“Teh Cheng Poh”), the Privy Council held the following:

“The power to revoke, however, like the power to issue a proclamation of emergency, vests in the Yang di-Pertuan Agong, and the Constitution does not require it to be exercised by any formal instrument.”[1] (emphasis mine)

Strictly speaking, the Privy Council is correct in pointing out that the Federal Constitution does not prescribe the use of any formal instrument for the revocation of a proclamation of emergency.

Similarly, the Federal Constitution does not prescribe the use of any formal instrument for the revocation of any ordinance promulgated pursuant to such a proclamation.

This would be in contrast to the annulment of a proclamation of emergency (and ordinance promulgated pursuant to such a proclamation) by Parliament.

Article 150(3) of the Federal Constitution prescribes resolutions passed by Parliament as the formal instrument to be used, in relation to annulments:

“A Proclamation of Emergency and any ordinance promulgated under Clause (2B) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance, but without prejudice to anything previously done by virtue thereof or to the power of the Yang di-Pertuan Agong to issue a new Proclamation under Clause (1) or promulgate any ordinance under Clause (2B).” (emphasis mine)

In the absence of a prescription in the Federal Constitution on the method of revoking a proclamation of emergency and/or the ordinances promulgated pursuant to such a proclamation, the relevant provision(s) in the Interpretation Acts 1948 and 1967 (if any) would be applicable.

The Malaysian superior courts have consistently recognised that the provisions of the Interpretation Acts 1948 and 1967 apply even to the Federal Constitution, by virtue of Sections 3 and 66 of the Act.[2]

The Ordinances

According to Article 150(2C) of the Federal Constitution, an ordinance promulgated under Article 150(2B) has the same force and effect as an Act of Parliament.

Interestingly, the Interpretation Acts 1948 and 1967 are silent on whether Acts of Parliament have to be published in the Gazette.

Section 18(1)(a) of the Interpretation Acts 1948 and 1967 merely groups Acts of Parliament and ordinances promulgated by the Yang di-Pertuan Agong in a specific part of the Gazette:

“(1) The Gazette shall be published in parts as follows:

(a) a part to be known as the Acts Supplement which shall be published as and when necessary and which shall contain all Acts of Parliament and all Ordinances promulgated by the Yang di-Pertuan Agong;” (emphasis mine)

However, ordinarily, a Bill that has been passed by both Houses of Parliament and received the royal assent will become law. However, it will not have effect until it has been published in the Gazette.[3]

Since an emergency ordinance has the same force and effect as an Act of Parliament, it would be reasonable to infer that the revocation of an emergency ordinance also requires publication in the Gazette before it has any effect.

The Proclamation

The Federal Constitution, unlike in the case of emergency ordinances, does not state whether a proclamation of emergency has the same force and effect as an Act of Parliament.

In the event a proclamation of emergency is a primary legislation, the manner of revoking it would be similar to that of emergency ordinances and likely require publication in the Gazette.

In the event a proclamation of emergency is a delegated/subsidiary legislation, rather than primary legislation, Sections 86 and 18(1)(b) of the Interpretation Acts 1948 and 1967 would be relevant.

Section 86(1) of the Interpretation Acts 1948 and 1967 provides that:

Subsidiary legislation made under any Act of Parliament, Ordinance, Enactment or other lawful authority shall, unless it be otherwise expressly provided in any Act of Parliament, Ordinance, be published in the Gazette and, unless it be otherwise provided in such subsidiary legislation, shall take effect and come into operation as law on the date of such publication.” (emphasis mine)

Additionally, Sections 18(1)(b) of the Interpretation Acts 1948 and 1967 groups Royal Proclamations together with delegated/subsidiary legislation in the Gazette:

“(1) The Gazette shall be published in parts as follows:

(b) a part to be known as the Legislative Supplement A which shall be published as and when necessary and which shall contain all Royal Proclamations, orders, rules, regulations and by-laws;” (emphasis mine)

In light of Sections 86 and 18(1)(b) of the Interpretation Acts 1948 and 1967, it can be argued that, as a general rule, a revocation order in relation to a proclamation of emergency has to be published in the Gazette.

Regrettably, the Privy Council’s decision in Teh Cheng Poh lacks any discussion on the possible application of Sections 86 and 18(1)(b) of the Interpretation Acts 1948 and 1967 even though both provisions were in force at the time the case was before the Privy Council.

Hence, the Privy Council’s observations vis-a-vis the formal method (or lack thereof) for the revocation of a proclamation of emergency should be treated with caution in light of the possible applications of Sections 86 and 18(1)(b) of the Interpretation Acts 1948 and 1967.

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