KUALA LUMPUR: The Federal Court has ruled that the anti-party hopping law enacted by the Penang government was valid and did not go against the Federal Constitution.
A seven-member bench of the Apex Court, led by Chief Justice Tun Tengku Maimun Tuan Mat, ruled that Article 14A passed by the Penang state assembly in 2012 was consistent with Article 10(1)(c) of the Federal Constitution.
She said the previous decision made by the Supreme Court in the Datuk Nordin Salleh case, where the Kelantan government's anti-party hopping law had been declared null and void, had since been overruled by the Federal Court.
The judges said the appellants, in making their arguments that Article 14A was unconstitutional, had argued that the law cannot impact on their right to form associations guaranteed by Article 10(1)(c) of the Federal Constitution.
However, the judges ruled that the right to change the political party membership 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.
"In our judgment, an elected representative's ability to change his membership of a political party does not take on the character of the personal right of a citizen to form associations as envisioned in Article 10(1)(c) of the Federal Constitution.
"It is instead, part and parcel of the proper functioning of Parliamentary democracy, for this to be validly restricted and regulated by laws passed."
The judges ruled that the judgment in Nordin Salleh's case, which stated that elected representatives have the right to change political associations once elected as a right to form associations under Article 10(1)(c), was constitutionally incorrect.
"Nordin Salleh, to that extent, is hereby overruled," the judges decided.
The other members of the panel were Datuk P. Nallini, Datuk Vernon Ong Lam Kiat, Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal, Datuk Rhodzariah Bujang and Datuk Mohamad Zabidin Mohd Diah.
The judges viewed that once an elected representative succeeded in an electoral contest on the ticket that he sought, he had exercised his right of association by contesting on that ticket.
The issue of the constitutionality of Article 14(A) was brought before the Federal Court following the action of four Penang Bersatu assemblymen, namely Khaliq Mehtab Mohd Ishaq (Bertam), Zolkifli Md Lazim (Teluk Bahang), Zulkifli Ibrahim (Sungai Acheh) and Dr Afif Bahardin (Seberang Jaya) to leave the Pakatan Harapan coalition in 2020.
Their defection led to the Penang state assembly speaker tabling a motion for them to vacate their seats and for by-elections to be held, as they had violated Article 14(A) of the state constitution.
According to Article 14(A) of the Penang State Constitution, a state assemblyman must vacate his seat if he resigns, is stripped of his membership, ceases to be a politician or is chosen as a candidate by another political party.