PUTRAJAYA: The Federal Court has ruled that Penang's anti-party hopping enactment is constitutional.
Chief Justice Tengku Maimun Tuan Mat (pic), who chaired a seven-member bench, said that Article 14A of the Penang State Constitution is consistent with Article 10(1)(c) of the Federal Constitution.
"Upon reading and considering all the cause papers and submissions, written and oral, it is our unanimous view that the answer to the sole constitutional question is in the negative.
"As such it is our judgment that Article 14A is not void as it is not inconsistent with Article 10," she said in online proceedings here on Wednesday (Aug 3).
The sole legal question that was posed to the apex court was whether Article 14A of the state constitution is void for being inconsistent with Article 10(1)(c) of the Federal Constitution.
Other judges on the bench were Federal Court judges Justices Nallini Pathmanathan, Vernon Ong Lam Kiat, Mary Lim Thiam Suan, Harmindar Singh Dhaliwal, Rhodzariah Bujang and Mohamad Zabidin Mohd Diah.
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The Chief Justice further said that the state assembly was entitled to enact a law to determine its own membership qualification.
While it was correct to say that the right to form associations includes the right to dissociate, Justice Tengku Maimun said it was incorrect to find that the right of an elected representative to change political parties was part and parcel of the right of association guaranteed by Article 10(1)(c).
"The right to be a member or to remain a member of the House or a State Assembly is not a right guaranteed by Article 10(1)(c).
"In point of fact, Article 10(1)(c) is not engaged," she said.
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The apex court further stated that an elected representative's ability to change or have changed his membership of a political party, given whatever reason, did not take on the character of the personal right of a citizen to form associations, as envisioned in Article 10(1)(c).
"It is instead part and parcel of the proper functioning of Parliamentary democracy and as such, can be validly restricted and regulated by laws passed.
"In this case, by the state legislature with the view to regulating the terms for qualifications of membership in the first respondent."
Justice Tengku Maimun said it was the court's view that once an elected representative had succeeded in an electoral contest on the ticket that he sought, he had exercised his right of association by contesting on that ticket.
"Once he is in the House of the State Legislature, the nature of his association takes on a different character in that it is no longer his personal right to associate but now governed by the ticket he stands on, upon having been given the mandate by the electorate that entrusted to him that position," she said.
The Federal Court also directed the High Court to proceed to continue with and dispose of the pending proceedings before it in accordance with the judgment of the Federal Court and otherwise according to law.
On April 12, Judicial Commissioner Azizan Md Arshad allowed an application by the Penang State Legislative Assembly (PSLA) and Speaker Datuk Law Choo Kiang to refer questions to the Federal Court to hear and decide on the constitutionality of the state's anti-hopping enactment.
In 2020, four assemblymen – Zulkifli Ibrahim (Sungai Acheh), Afif Bahardin (Seberang Jaya), Khaliq Mehtab Mohd Ishaq (Bertam), and Zolkifly Md Lazim (Telok Bahang) – had filed three writs of summons against the PSLA and its Speaker to challenge a motion introduced in October 2020 for the four to vacate their seats and by-elections to be held, following their defection from the Pakatan Harapan coalition.
Article 14A of the Penang State Constitution states that an assemblyman shall vacate his seat if, having been elected as a candidate of a political party, he resigns or is expelled from a party; or, having been elected otherwise than as a candidate of a political party, he joins a political party.
Lawyers Datuk DP Naban, Rosli Dahlan, Chetan Jethwani, Siva Kumar Kanagasabai appeared for the appellants (the assemblymen).
Meanwhile lawyers Datuk Malik Imtiaz Sarwar and A. Surendra Ananth appeared for the respondents, PSLA and Law.
