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10 APRIL 2024

Monday, May 30, 2022

Apex court to hear constitutionality of Penang’s anti-hopping law


The Penang state assembly passed the anti-hopping enactment in 2012.

PUTRAJAYA: The Federal Court will determine the constitutionality of Penang’s anti-hopping enactment on Aug 3.

Lawyer A Surendra Ananth said that in a recent case management, the apex court instructed the parties to file written submissions by July 18.

“We will also write to the court to request that an enlarged bench of seven or nine judges hear the case due to its constitutional importance,” he told FMT.

The Penang government has issued a special fiat to lawyers Malik Imtiaz Sarwar and Surendra to represent the state assembly and the speaker, who are the defendants.

On April 12, judicial commissioner Azizan Arshad, who is based in Penang, allowed a reference application by the defendants as an apex court judge had made a finding in 1988 that state legislative assemblies are competent to pass such laws.

Azizan said then Supreme Court judge Hashim Yeop Sani had made an observation that disqualification of an MP was a federal subject while that involving a state legislative member was a state subject.

Hashim had also said the power of a state legislature to enact an anti-hopping law was also provided for under Article 74 (4) of the Federal Constitution.

He made these findings in dismissing a leave application by then Sabah assemblyman Abdul Karim Abdul Ghani, who challenged a 1986 anti-hopping enactment passed by the state assembly when Parti Bersatu Sabah was in power.

He dismissed Karim’s leave application for the matter to be referred to the apex court on other technical grounds.

In 1992, the Supreme Court – which was renamed the Federal Court two years later – declared the Kelantan anti-hopping enactment as unconstitutional, saying that Nordin Salleh and Wan Mohd Najib Wan Mohamad could defect to Umno/Barisan Nasional as it was their right to freedom of association.

The Penang assembly and the speaker have taken the position that the legislature was competent to approve the anti-hopping enactment passed in 2012.

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.

This issue came about in 2020 after four Penang assemblymen – the plaintiffs – filed an action to challenge a motion introduced by the speaker in the state assembly to vacate their seats and to hold by-elections.

The assemblymen were Zulkifli Ibrahim (Sungai Acheh), Dr Afif Bahardin (Seberang Jaya), Khaliq Mehtab Mohd Ishaq (Bertam) and Zolkifly Md Lazim (Telok Bahang). - FMT

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