The Federal Court overrules the decision on the party-hopping case Dewan Undangan Negeri Kelantan & Anor v Nordin Salleh & Anor [1992] 1 MLJ 697

In Dewan Undangan Negeri Kelantan & Ors (State Legislative Assembly of Kelantan (‘SLAK’) & Ors) v Nordin Salleh & Anor the first and second respondents had contested and won seats in the 1990 election to the SLAK. Shortly after the 1990 elections, the SLAK amended the Constitution of the state of Kelantan by inserting in it a new article, art XXXIA. The new article provided that if any member of the SLAK resigned or was expelled from the party on whose ticket, he was elected for any reason whatsoever shall cease to be a member of such political party, he shall cease to be a member of the SLAK and his seat shall become vacant. The first and second respondents resigned from the party on whose ticket they had been elected and the SLAK declared their seats vacant. The two respondents challenged their expulsion from the SLAK. Both, the High Court and the apex court, then titled the Supreme Court, held that art XXXIA of the Kelantan Constitution rendered the exercise of the right of association conferred on the respondents by art 10(1)(c) of the Federal Constitution ‘illusory’ and ‘ineffective’. After many years, the constitutionality of party hopping has been raised for the consideration of the Federal Court. Over the years, Nordin Salleh having the cachet of an apex court decision ostensibly grounded in the Federal Constitution, has forestalled attempts by state assemblies to bar party hopping. In answering the question posed to it, the Federal Court unanimously overruled Nordin Salleh. This paper sketches the legal and constitutional grounds on which the Federal Court overruled Nordin Salleh.