High Court dismisses application by Penang assemblymen to amend anti-hopping challenge


GEORGE TOWN: The High Court here has dismissed applications to amend several originating summons (OS) filed by four assemblymen who could lose their seats once the new anti-hopping law comes into force.

All four had earlier told the court that the law is in violation of their freedom of speech under Article 10(1) A of the Federal Constitution.

The assemblymen - Zulkifli Ibrahim (Sungai Acheh), Dr Afif Bahardin (Seberang Jaya), Khaliq Mehtab Mohd Ishaq (Bertam) and Zolkifly Md Lazim (Telok Bahang) - said the grounds for their application to amend their OS is that the state's anti-hopping law is unconstitutional.

They had filed three separate OS against the Penang State Assembly and State Assembly Speaker to challenge the constitutionality of Article 14A(1) of the Penang State Constitution, and to stop the four seats concerned from being declared vacant pursuant to Article 14A(1).

The four had left the Pakatan Harapan government in 2020 but still remained as assemblymen.

Zulkifli and Dr Afif won their seats on PKR tickets but joined Parti Pribumi Bersatu Malaysia while Khaliq Mehtab and Zolkifly are still with Bersatu, which they were elected under.

They then filed three separate suits against the state legislative assembly and the Speaker to challenge a motion introduced in October 2020 for the four to vacate their seats and for by-elections to be held.

The motion, tabled under Article 14A of the Penang State Constitution stipulates that a state assemblyman must vacate his seat if he resigns, is stripped of his membership, ceases to be a politician or is chosen as a candidate by another political party.

The law also stipulates that the state assemblyman is required to vacate his seat if the party is dissolved or its registration cancelled.

After their suits were filed, the Speaker of Penang's legislative assembly referred a question to the Federal Court on whether Article 14A of Penang Constitution was void for being inconsistent with Article 10(1)(c) of Federal Constitution.

In August, the Federal Court decided that Article 14A of the state constitution is consistent with Article 10(1)(c) of the Federal Constitution.

In dismissing the applications with no order as to costs, Judicial Commissioner Azizan Md Arshad

who delivered the decision via email to both parties on Thursday (Oct 6) said even if there is no bad intention, the action to make the application in stages is not justified.

"If this is allowed at this stage, what guarantee does the court have that the parties will not come forward to make amendments involving other Articles in the Federal Constitution,” he said.

"After careful consideration of the applications, this court concludes that the subject matter of these applications falls under the exclusive jurisdiction of the Federal Court,” added Azizan.

He added that the Federal Court has the authority to rule on these constitutional issues and said that the amendment would change the whole character of the OS.

Azizan then said that it was not the responsibility of the court to see how pleadings are prepared and added that parties should know from the beginning the direction of their case

"It is also not the responsibility of the court to assist any party to fill in the gaps in the facts to prove their case.” he said.

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