KUALA LUMPUR (April 13): The Penang High Court on Tuesday (April 12) allowed a referral to be made to the Federal Court over a State Constitution provision against elected assemblymen moving to another party or coalition being required to vacate their seats.
This follows four assemblymen, namely Khaliq Mehtab Mohd Ishaq (Bersatu-Bertam), Zolkifli Md Lazim (Bersatu-Teluk Bahang), Zulkifli Ibrahim (Bersatu-Sungai Acheh) and Dr Afif Bahardin (Bersatu-Seberang Jaya), having left the Pakatan Harapan (PH) coalition.
Parti Pribumi Bersatu Malaysia left the PH coalition in February 2020, resulting in Khaliq and Zolkifli to not be part of the ruling state government, while Zulkifli and Dr Afif were previously from PKR before moving to Bersatu.
The order was granted by Judicial Commissioner Azizan Md Arshad who in his broad grounds ruled that the question of law posed by the Penang State Legislative Assembly Speaker and the Penang assembly, who are the defendants in the case, fulfilled conditions under Section 84 of the Courts of Judicature Act 1964 (CJA) and Article 128 of the Federal Constitution.
The single question of law posed to the apex court is “whether Article 14A of the State Constitution of Penang is void for being inconsistent with Article 10(c) of the Federal Constitution”.
Lawyer Surendra Ananth, who appeared with counsel Datuk Malik Imtiaz Sarwar for the Penang Speaker and government and who had been granted fiat to act for them, confirmed the outcome with theedgemarkets.com.
They had argued that the last decision on the subject regarding the requirement to vacate the seats was the decision on the Kelantan State Legislative Assembly vs Nordin Salleh, which was made almost 30 years ago.
“Since then, there have been significant constitutional developments. As such, there is a need to revisit the Nordin Salleh case,” both Surendra and Malik said.
Section 84 of the CJA stipulates that the following basic requirements must be satisfied, namely:
a) the question to be referred must arise in any proceedings in any High Court;
b) the question relates to the effect of any provision of the Constitution; and
c) the High Court judge should settle any questions of fact as may be necessary to assist the Federal Court in deciding the question and to the speedy and economical final determination of the proceedings.
Meanwhile, Article 128 of the Federal Constitution stipulates that the Federal Court shall, to the exclusion of any other court, have jurisdiction to determine in accordance with any rules of court regulating the exercise of such jurisdiction:
a) any question whether a law made by Parliament or by the legislature of a state is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament or, as the case may be, the legislature of the state has no power to make laws; and
b) disputes on any other question between states or between the federation and any state.
Article 10(c) of the Federal Constitution refers to all citizens' rights to form associations.
Article 14A of the Penang State Constitution states that a state assemblyman should vacate his seat if he resigns, is stripped of his membership, ceases from being a politician or is chosen as a candidate by another political party.
The Penang State Legislative Assembly previously tried to table the motion against the four, but agreed to defer the tabling of the motion pending the disposal of the suit filed by them.
The four assemblymen were represented by Datuk DP Naban and Rosli Dahlan.