[UPDATED] Federal Court rules Penang’s anti-hopping law constitutional

KUALA LUMPUR – The Federal Court today has ruled that Penang’s state law provision against anti-party hopping is valid.

According to The Edge, a seven-member Federal Court bench, led by chief justice Tun Tengku Maimun Tuan Mat, has unanimously decided to overrule the precedence set by the-then Supreme Court decision in the case of Datuk Nordin Salleh vs Kelantan state government (1988) which had declared the state’s anti-hopping enactment as unconstitutional.

Other members of the bench were justices Datuk Nallini Pathmanathan, Datuk Vernon Ong Lam Kiat, Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal, Datuk Rhodzariah Bujang, and Datuk Mohamad Zabidin Mohd Diah

The decision comes after the Penang assembly had posed a single constitutional question to the Federal Court on “whether Article 14A of Penang’s state constitution” is void for being inconsistent with Article 10(c) of the Federal Constitution.

In deciding otherwise, the apex court had also directed the high court to dispose of the matter in line with its decision today.

Under Article 14A of the Penang state constitution, it is stipulated that a state legislative assembly member shall vacate his or her seat if – having been elected as a candidate of a political party – resigns from their post or switches allegiances to another political party.

The state enactment also stipulated that a state assemblyman is required to vacate his or her seat if the party is dissolved or its registration is cancelled.

“In our view, the first respondent was entitled to enact a law which relates to the qualification for membership of itself. The only question is whether Article 10(1)(c) was violated in the enactment of Article 14A of the Penang state constitution.

“The general constitutional question, in this case, is whether an elected representative’s right to change his membership of a political party as a general rule, is in the first place, a fundamental right guaranteed by Article 10(1)(c). 

“The question of a restriction of that right does not arise, if, in the first place, the right to change membership of a political party of someone who was elected as a representative in the assembly is not a fundamental right envisioned in Article 10(1)(c) of the Federal Constitution,” said Tengku Maimun in a broad judgement sighted by The Vibes.

The legal tussle emerged in 2020 when four state assemblymen namely Zulkifli Ibrahim (Sg Acheh), Dr Afif Bahardin (Seberang Jaya), Khaliq Mehtab Mohd Ishaq (Bertam) and Zolkifly Md Lazim (Telok Bahang) had filed three separate suits against the state legislative assembly and the state speaker.

All four assemblymen had left the Pakatan Harapan coalition which triggered the Penang government to file a motion for them to vacate their seats in accordance with state law. – The Vibes, August 3, 2022