Penang's anti-hopping law valid and constitutional - Federal Court

Chief Justice Tun Tengku Maimun Tuan Mat who chaired the panel, said Article 14A of the Penang State Constitution is not void as it is consistent with Article 10 (1) (c) of the Federal Constitution.

Article 14A of the Penang State Constitution states that a state 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.

On April 12 this year, Judicial Commissioner Azizan Md Arshad allowed an application by the Penang State Legislative Assembly (PSLA) and its 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.

The PSLA and its speaker want the Federal Court to decide on the question of whether Article 14A of the Penang State Constitution is void as it is inconsistent with Article 10 (1) (c) of the Federal Constitution.

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 in 2020 against the State Legislative Assembly and its speaker to challenge a motion introduced in October 2020 for the four to vacate their seats and by-elections be held.

The other judges presiding on the bench were Federal Court judges Datuk Nallini Pathmanathan, Datuk Vernon Ong Lam Kiat, Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal, Datuk Rhodzariah Bujang and Datuk Mohamad Zabidin Mohd Diah.

Justice Tengku Maimun, however, said the counsel for the respondents (PSLA and speaker) argued that the enactment of Article 14A of the Penang State Constitution was to deal with issues relating to the qualification of membership in the State Legislature which was a matter contemplated within the Eighth Schedule of the Federal Constitution and that the respective State Legislatures were empowered to amend their State Constitution to deal with issues relating to qualification for membership.

"It is our view that with respect to Nordin Salleh's case, though correct to say that the right to form associations includes the right to dissociate, was incorrect to find that the right of an elected representative to change political parties is, in the first place, part and parcel of the right of association guaranteed by Article 10 (1) (c). In point of fact, the article is not engaged ," she said.

Justice Tengku Maimun in the judgment held that an elected representative's ability to change or have changed his membership of a political party for whatever reason, does not take on the character of the personal right of a citizen to form associations as envisioned in Article 10 (1) (c) of the Federal Constitution.

"It is instead, part and parcel of the proper functioning of parliamentary democracy and such, can be validly restricted and regulated by the laws passed, in this case, by the State Legislature with the view to regulate the terms for qualification of membership in the first respondent (PSLA).

"It is our view that the terms for qualification of membership in the House or a State Assembly are matters which pertain to parliamentary democracy and do not concern the individual elected representative's personal right or choice to associate with a certain political association or party under Article 10 (1)(c) of the Federal Constitution.

"For these reasons, we find that the Nordin Salleh's case to the extent that it says that elected representatives have the right to change political associations once elected - as a right to form associations under Article 10 (1) (c) as constitutionally incorrect. Nordin Salleh, is, to that extent hereby overruled," she added.

Justice Tengku Maimun said the court was of the 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 or 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, he stands on upon having been given the mandate by the electorate that entrusted to him that position.

"Based on the foregoing, the sole constitutional question, as indicated earlier, is answered in the negative," she said when delivering the decision via online proceeding, today.

The bench then directed the Penang High Court to proceed with a hearing in accordance with today's judgment or otherwise in accordance with the law.

Counsel Datuk D.P. Naban, Rosli Dahlan, Chetan Jethwani and Siva Kumar Kanagasabai appeared for the appellants, while lawyers Datuk Malik Imtiaz Sarwar and A. Surendra Ananth, represented PSLA and its speaker as respondents.