Apex court: Penang anti-hopping law valid

PUTRAJAYA: Penang’s anti-party hopping law, enacted in 2012, is constitutional, the Federal Court has ruled.

The ruling brings into question the status of four assemblymen – Zulkifli Ibrahim (Sungai Acheh), Afif Bahardin (Seberang Jaya), Khaliq Mehtab Mohd Ishaq (Bertam) and Zolkifly Md Lazim (Telok Bahang).Zulkifli and Afif were elected on PKR tickets but joined Parti Pribumi Bersatu Malaysia (Bersatu) while the other two are with Bersatu, which left the Pakatan Harapan coalition after the Sheraton move.

Chief Justice Tengku Maimun Tuan Mat (pic), who chaired a seven-member bench, said yesterday that Article 14A of the Penang State Constitution was consistent with Article 10(1)(c) of the Federal Constitution.

The sole legal question posed to the apex court was whether Article 14A was void for being inconsistent with Article 10(1)(c) of the Federal Constitution.

“It is our unanimous view that the answer is in the negative. Article 14A is not void as it is not inconsistent with Article 10(1)(c),” she said in an online proceeding here yesterday.

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.

The Chief Justice further said the state assembly was entitled to enact a law to determine its own membership qualification.

While it was correct to say the right to form associations includes the right to dissociate, 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 court said an elected representative’s ability to change his membership of a political party, whatever the reason, could not be classified under 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. As such, it can be validly restricted and regulated by laws.

“In this case, by the state legislature with the view to regulating the terms for qualifications of membership,” she said.

Tengku Maimun said it was the court’s view that once an elected representative 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 ... is no longer his personal right to associate but now governed by the ticket he stands on,” she said.The Federal Court also directed the High Court to continue with and dispose of the pending proceedings in accordance with the judgement of the Federal Court and according to the law.

On April 12 this year, Judicial Commissioner Azizan Md Arshad allowed an application by Penang State Legislative Assembly (PSLA) and speaker Datuk Law Choo Kiang to refer the question to the Federal Court.

In 2020, Zulkifli, Afif, Khaliq Mehtab and Zolkifly had filed three writs of summons against the PSLA and the speaker to challenge a motion for the four to vacate their seats following their defection from Pakatan.

Article 14A of the state constitution says a state assemblyman shall vacate his seat if, having been elected as a candidate of a political party, he resigns or is expelled from the party; or having been elected otherwise than as a candidate of a political party, he joins a political party.

Penang Chief Minister Chow Kon Yeow said the state exco would discuss the status of the four tomorrow.

Lawyers Datuk DP Naban, Rosli Dahlan, Chetan Jethwani, Siva Kumar Kanagasabai appeared for the assemblymen.

Datuk Malik Imtiaz Sarwar and A. Surendra Ananth appeared for PSLA and Law.

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