Seeking to protect seats, Penang assemblymen argue in court that anti-hopping law violates constitutional freedom
14 September 2022
GEORGE TOWN, Sept 14 — The counsel for four Penang assemblymen who are facing the prospect of losing their seats after switching political parties told the High Court here today that the state’s anti-hopping law is unconstitutional.
Their lawyer Datuk DP Naban said they were challenging the state law because it violated their right to freedom of speech under Article 10(1)A of the Federal Constitution.
"It infringes on their freedom of speech because if they were to speak differently, they may be expelled by their party and have to vacate their seat under Article 14A(1) of the Penang State Constitution,” he submitted during the hearing of the application to amend their originating summons (OS).
Naban is representing the four state assemblymen — Zulkifli Ibrahim (Sungai Acheh), Dr Afif Bahardin (Seberang Jaya), Khaliq Mehtab Mohd Ishaq (Bertam) and Zolkifly Md Lazim (Telok Bahang) — who separately filed three OS challenging the constitutionality of Article 14A(1) of the Penang State Constitution as well as to prevent their sears from being declared vacant.
They had named the Penang state assembly and state assembly Speaker as respondents in their suit.
Naban argued that the amendments the four sought are not frivolous as it relates to the constitutional rights of the plaintiffs.
He also told the court that they did not file a new OS because they are not changing the initial suit.
Judicial Commissioner Azizan Md Arshad suggested that the case might be referred to the Federal Court if he allowed the OS to be amended as it was a constitutional issue.
But Naban argued that it was unnecessary.
"The point we are raising here is that it does not need to be referred to the Federal Court, the High Court can decide in this matter,” the lawyer for the four assemblymen said.
He said that the amendment to the OS did not change the facts of the case and that all the original affidavits submitted still applied.
But lawyer Surendra Ananth representing the respondents argued that allowing the amendment would delay hearing of the main case.
"If they had filed a new OS after the Federal Court’s decision declaring Article 14A(1) of the state constitution as lawful and consistent with Article 10(1)(c) of the Federal Constitution in August, they could have filed the necessary affidavits for the new OS but this application to amend the OS meant that it will be taking twice as long for the OS to be heard,” he said.
He maintained that the four assemblymen applied to amend the OS as they needed it for the consent order to still be in force.
He said the consent order was for the state legislative assembly not to table a motion for the four assemblymen to vacate their seats as per the anti-hopping law until the disposal of the OS.
"This is clearly a tactical manoeuvre to delay this case as they can still raise all these issues in a new OS,” Surendra said.
He argued there was nothing to stop the four assemblymen from filing a new OS, but if the amendment were allowed, they might file another amendment in future and that it could be a never ending cycle.
"So, you are saying that they first said it's against 10 (1)(c), now they put in 10 (1) (A) and then they can come up with 10 B and so on?” Azizan asked.
Naban insisted that it would not.
"The issue we are raising is a constitutional issue and we are not raising other issues, we have kept it within the confines of the constitutional issue,” he said.
After hearing submissions from both sides, Azizan said he will deliver a decision via email to both parties on October 6 with an e-review for further instructions pertaining to the OS.
The case dates back to 2020 when the Zulkifli, Dr Afif, Khaliq and Zolkifly filed three separate suits against the state legislative assembly and the state Speaker to challenge a motion introduced in October that year that would force the four assemblymen to vacate their seats and trigger by-elections for their replacement.
The motion was tabled under Article 14A of the Penang Constitution that compels a member of the state legislative assembly to vacate the seat contested as a candidate of a political party should he quit or be expelled from the party or switches to another midterm.
The law also stipulated that the assemblyman is required to vacate his seat if the party is dissolved or its registration cancelled.
Zulkifli and Dr Afif were both elected under the PKR banner and later sacked from the party while Khaliq and Zolkifly contested their seats under Bersatu and still remain with the party, which later exited the Pakatan Harapan coalition that won in Election 2018.
In their suits against the state legislative assembly and the Speaker, the four had referred a question to the Federal Court on whether Article 14A of the Penang constitution is void for being inconsistent with Article 10(1)(c) of the Federal Constitution.
Last month, the Federal Court decided that Article 14A of the state constitution was consistent with Article 10(1)(c) of the Federal Constitution.
As the case is still being heard in the courts, the Penang state assembly and state Speaker have agreed, in a consent order, to temporarily refrain from tabling the motions for the four to vacate their seats.
Edited by Opalyn Mok