PUTRAJAYA (Dec 16): The Federal Court has rejected a constitutional challenge by four Parti Bersatu assemblymen from Penang against the state’s anti-hopping law. 

Chief Justice (CJ) Tun Tengku Maimun Tuan Mat, who led the bench in the hearing for leave to commence the constitutional challenge, had rejected it after hearing submissions from Datuk DP Naban, who was representing the four lawyers; and Datuk Malik Imtiaz Sarwar, who represented the Penang state government. 

In her decision via Zoom proceedings on Friday (Dec 16) morning, Tengku Maimun said the apex court had previously ruled that the Penang state assembly is free to make the laws and that a provision in Penang’s constitution against party-hopping passed in 2012 is a valid law.

With that, she rejected the four assemblymen’s leave for a constitutional challenge. 

The matter arose after the four Penang assemblymen, namely Khaliq Mehtab Mohd Ishaq (Bersatu-Bertam), Zolkifli Md Lazim (Bersatu-Teluk Bahang), Zulkifli Ibrahim (Bersatu-Sungai Acheh) and Dr Afif Bahardin (Bersatu-Sebarang Jaya), left the Pakatan Harapan (PH) coalition to join Perikatan Nasional (PN). 

In the apex court’s previous ruling on Aug 3, Tengku Maimun had ruled that the previous decision made by the Supreme Court in the Datuk Nordin Salleh case, wherein the Kelantan state government enactment over anti-party-hopping law was declared null and void, was overruled by the apex court.

The sole constitutional question posed by the Penang state legislative assembly to the Federal Court was “whether Article 14A of the State Constitution of Penang is void for being inconsistent with Article 10(c) of the Federal Constitution”, to which the bench answered to the negative.

“On reading the cause papers and hearing the submission, it is our unanimous decision that Article 14A is not void, as it is not against Article 10(1)(c) of the Federal Constitution. In making the argument, the appellants (the four assemblymen) cannot say their rights to association guaranteed by Article 10(1)(c) of the Federal Constitution are affected.

“It is the power of the first respondent (the Penang state legislative assembly) to make the law,” Tengku Maimun added.

The CJ said an elected representative’s ability to change a political party for whatever reason does not take on the character of the personal right of a citizen to form associations as envisioned by 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 qualification of membership in the first respondent (state legislature),” she said.

Tengku Maimun further noted that the four assemblymen did not initiate the constitutional reference challenge with regard to their expulsion being a fully inconsistent provision, as it was the Penang state legislative assembly which initiated it.

“The terms of qualification of membership in the house pertain to parliamentary democracy and do not concern elected representatives’ right of choice to associate or disassociate themselves as per Article 10(1)(c),” the CJ said.

According to Article 14A of the Penang state constitution, which was passed by a two-thirds majority in 2012, a state assemblyman should 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.

Article 10(1)(c) of the Federal Constitution spells out the right of citizens to form associations.