Federal Court to rule on constitutionality of Penang anti-hopping law

 

The Federal Court is to decide if the Penang legislation goes against Article 10 of the Federal Constitution on the issue of ‘freedom of association’.

PETALING JAYA: The High Court has allowed an application by the Penang state assembly and its Speaker to refer to the Federal Court whether the state’s anti-hopping law violates the constitutional right to freedom of association.

Penang-based Judicial Commissioner Azizan Md Arshad, who delivered the ruling today, said the two had fulfilled the requirements of Article 128 of the Federal Constitution and Section 84 of the Courts of Judicature Act.

The question for determination is whether Article 14A of the Penang constitution is void for being inconsistent with Article 10(1)(c) of the Federal Constitution.

The plaintiffs are assemblymen Zulkifli Ibrahim (Sungai Acheh), Afif Bahardin (Seberang Jaya), Khaliq Mehtab Mohd Ishaq (Bertam), and Zolkifly Md Lazim (Telok Bahang)

Zulkifli and Afif were sacked from PKR in 2020 while Khaliq and Zolkifly are members of Bersatu. Lawyers DP Naban and Rosli Dahlan represented the four.

In late 2020, they filed three separate actions to challenge a motion introduced by the Speaker during the state assembly sitting in October that year to vacate their seats and to hold by-elections.

The state assembly and the Speaker were named as defendants.

The Penang government then issued a special fiat to lawyers Malik Imtiaz Sarwar and A Surendra Ananth to represent the defendants.

Early last year, they filed an application to refer the matter to the Federal Court.

Surendra said the main basis for the application was that the last decision on the subject was in the case of Dewan Undangan Negeri Kelantan v Nordin Salleh which was decided in 1992.

“There is a need to revisit this case since there have been significant constitutional developments,” he told FMT.

Nordin (Sungai Pinang) and Wan Mohamed Najib Wan Mohamad (Limbongan) won their state seats under the then-Semangat 46 ticket in the 1990 general election.

However, both defected to Umno in 1991. The Kelantan state assembly amended the state constitution and passed an anti-hopping law that took retrospective effect from Nov 18, 1990.

The Speaker declared the seats vacant and both men contested again in by-elections but lost.

The duo then sought legal remedy and the Supreme Court in 1992 held that the amendment to the state constitution was designed to enforce party discipline, not impose restrictions on state assemblymen.

The court said the amendment breached Article 10 of the Federal Constitution which guaranteed freedom of association. Nordin and Wan Mohamed were subsequently reinstated as assemblymen.

Meanwhile, Surendra said the assembly and the Speaker had agreed to delay tabling the motions pending the disposal of the suits. - FMT