PUTRAJAYA (Feb 10): Malaysia’s top court on Monday dismissed an appeal by two Parti Keadilan Rakyat turncoats forced to vacate their seats five years ago, after being expelled from the party for joining the opposition.

A three-member bench led by Chief Judge of Malaya Datuk Seri Hasnah Mohamed Hashim refused to hear the four questions of law on its full merit posed by Tan Sri Azhar Azizan Harun on behalf of Zulkifli Ibrahim (Sungai Acheh) and Dr Afif Bahardin (Seberang Jaya).

The questions did not pass the threshold under Section 96 of the Courts of Judicature Act 1964, said Hasnah, who heard the appeal with Federal Court judges Datuk Abdul Karim Abdul Jalil and Datuk Vazeer Alam Mydin Meera.

They made no order as to costs.

In civil proceedings at the apex court, leave must be obtained first on questions of law, before the merits of an appeal can be heard. This is to make sure that such appeals are decided on novel issues of law only.

Azhar, who appeared with solicitor Chethan Jethwani, had wanted the apex court to decide on Article 14A of the Penang state constitution and Article 49A of the Federal Constitution legislated against anti-hopping.

He argued that Article 14A is not in line with the federal Article 49A(2) legislation that allows an exception that a seat should not be declared vacated in cases of expulsion.

“We humbly say that Article 14A of the Penang constitution should be given a restrictive meanin, and they should rely on what is stipulated at the federal level,” he said. “If not, anyone who has been elected but has been expelled from their party would have to vacate their seats.”

However, A Surendra Ananth for the Penang legislative assembly and state assembly speaker Datuk Law Choo Kiang said there is no inconsistency as Penang's state constitution was not amended along with the Federal Constitution in 2022.

The argument on Article 49A is not relevant in the case involving Zulkifli and Afif, and the motions for them to vacate their seats were done properly, he countered.

The apex court had in August 2022 ruled Penang's anti-party-hopping law constitutional.

On Sept 27 last year, a three-member Court of Appeal bench unanimously dismissed Zulkifli and Afif’s appeal. Judge Datuk Che Mohd Ruzima Ghazali, who led the bench, ruled the order to vacate their seats just before the state elections was valid.

“There is no error in the reasoning applied by the High Court, and hence, we dismiss the appeal,” said Che Mohd Ruzima, who sat with judge Datuk Azizul Azmi Adnan and High Court judge Datuk Seri Mohd Firuz Jaffril on the Court of Appeal panel.

Afif and Zulkifli were seeking to overturn the High Court’s December 2023 decision by judge Datuk Anand Ponnudurai, who ruled that the state assembly’s passage of a resolution for Afif and Zulkifli to vacate their seats was consistent with Article 14A of the Penang state constitution that bars party-hopping.