PUTRAJAYA (Sept 27): The Court of Appeal on Friday unanimously upheld the Penang High Court’s decision late last year that ruled that the state legislative assembly's decision for two former assemblymen, Zulkifli Ibrahim (Sungai Acheh) and Dr Afif Bahardin (Seberang Jaya), to vacate their seats just before the state elections, was valid.
The Court of Appeal bench led by COA judge Datuk Che Mohd Ruzima Ghazali said that, having heard submissions in the case, the bench was of the considered view that all arguments had been ventilated before the High Court.
“There is no error in the reasoning applied by the High Court, and hence, we dismiss the appeal. The bench also decided no order as to costs,” said the judge, who sat with COA judge Datuk Azizul Azmi Adnan and High Court judge Datuk Seri Mohd Firuz Jaffril.
Dr Afif and Zulkifli were appealing the High Court’s December 2023 decision by judge Datuk Anand Ponnudurai that ruled that the state legislative assembly’s decision of passing a resolution for Dr Afif and Zulkifli to vacate their seats due to them ceasing to be Parti Keadilan Rakyat (PKR) members as they were expelled, was consistent with Article 14A of the Penang state constitution which bars party-hopping.
Following their expulsion from PKR, both Dr Afif and Zulkifli joined Parti Pribumi Bersatu Malaysia (Bersatu), and this led to the motion for them to vacate their seats.
However, Anand disagreed with the argument that Article 14A also applied to two other former Bersatu assemblymen namely, Khaliq Mehtab Ishaq (Bertam) and Zolkifly Lazim (Teluk Bahang), as they had never left Bersatu and hence remained as assemblymen between May 2018 to June last year, and the court asked for the assembly to reinstate their emoluments.
This was despite a similar motion being passed by the Penang assembly for Khaliq and Zolkifly to also vacate their seats as was done with Dr Afif and Zulkifli.
The motions for the four assemblymen to vacate their seats came about as a result of Bersatu not being part of the then-Pakatan Harapan government, due to the February 2020 political move that resulted in the fall of the PH government at the federal level.
Difference between Article 14A of the Penang constitution and Article 49A of the Federal Constitution
Former parliament speaker Tan Sri Azhar Azizan Harun, who appeared as counsel for Dr Afif and Zulkifli, submitted before the appellate bench that Article 14A of the Penang constitution was inconsistent with Article 49A of the Federal Constitution, and hence the requirement for Article 14A to be read harmoniously.
Azhar said Article 14A, that allows an elected party member who has been expelled by his party to vacate his state seat, was inconsistent with Article 49A, which does not have similar provisions.
“This had resulted in the party to determine the fate of someone at the expense of the voters, or possibly usurping the power of the voters if Article 14A is allowed to happen,” he warned.
Furthermore, Azhar said when Article 49A of the Federal Constitution was amended, other states, including Sabah, had adopted it and amended their respective state constitution to implement it with the exception of Penang, which until today did not have a special seating to adopt it.
Article 14A of the Penang constitution was passed in 2012, and stipulates that 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.
Meanwhile, Article 49A of the Federal Constitution, which was passed by Parliament in 2022, stipulates that a member of the House of Representatives (Dewan Rakyat) will cease to be a member and his seat considered vacant if: (a) he resigns as, or ceases to be, a member of that political party; or (b) having been elected to the House of Representatives otherwise than a member of a political party (i.e. an independent candidate) he joins a political party as a member.
Azhar told the court that in the Federal Constitution amendment, there was no mention of expulsion (stripped), only the word “ceases”, and hence the Penang legislative assembly’s decision to declare the vacancy was not right as it went against the Federal Constitution.
In a federated country, Azhar said the Federal Constitution remains supreme compared to the state constitution.
However, judge Azizul asked if the court were to apply something which had not been passed or adopted by the Penang assembly, would it not violate the principle of separation of powers of the legislature, and to this Azhar replied that all they wanted was to relook the phrase (meaning) of expulsion that happened to Dr Afif and Zulkifli.
Meanwhile, counsel Surendra Ananth, for the Penang legislative assembly and its Speaker Law Choo Kiang, argued that the decision of the assembly was valid, as the assemblymen had been expelled by their party and by virtue of that, Article 14A applies.
Surendra also said that the Penang assembly did not have a special session in the legislature to adopt the amendments of Article 49A of the Federal Constitution due to a provision in the Federal Constitution in Part I of the Eighth Schedule, which stipulates that if at any time the constitution of any state does not contain provisions set out in the Eighth Schedule, or provisions substantially to the same effect, or contains provisions inconsistent with the essential provisions, Parliament may, notwithstanding anything in this Constitution, by law make provision for giving effect in that State to the essential provisions or for removing the inconsistent provisions.
Surendra said Parliament could have dealt with the inconsistency of the Penang state constitution via this manner by coming up with a law.
Furthermore, Surendra said the apex court had also ruled Article 14A of the Penang constitution to be constitutional.