Judicial commissioner Azizan Md Arshad 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.
Azizan said the competency of the state assemblies to pass anti-hopping enactments was clearly put in paragraph 6 of the Eighth Schedule of the Federal Constitution as being one of the essential provisions required by the Constitution to be incorporated into the state constitution.
In his judgment, Hashim said paragraph 6 was a disqualification in relation to membership of the legislature of the state “which is within the competency of the state and is also recognised in the Elections (Conduct of Elections) Regulations 1981”.
He 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.
Hashim 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.
The Sabah assembly repealed its anti-hopping enactment in 1995.
Azizan, in his broad judgment sighted by FMT, said the Sabah case was never referred to or argued by the Supreme Court in the case involving Nordin Salleh in 1992.
“This is one of the reasons why this case (Penang anti-hopping enactment) should be determined directly at the Federal Court level,” he said.
In the case of Nordin Salleh, Azizan said, the issue was the fundamental right of association guaranteed under Article 10(1)(c) of the Federal Constitution.
However, in Karim’s case, the issue was on disqualification of a member of the legislative assembly of the state under Article 74(4) of the Federal Constitution.
The Supreme Court, which was renamed the Federal Court in 1994, declared the Kelantan anti-hopping enactment as unconstitutional, saying Nordin and Wan Mohd Najib Wan Mohamad could defect to Umno/BN as it was a right to the freedom of association.
Last week, Azizan allowed a reference application by the Penang assembly and the speaker who took the position that the legislature was competent to approve the anti-hopping enactment.
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 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 are Zulkifli Ibrahim (Sungai Acheh), Dr Afif Bahardin (Seberang Jaya), Khaliq Mehtab Mohd Ishaq (Bertam) and Zolkifly Md Lazim (Telok Bahang).
The state assembly had passed the anti-hopping enactment in 2012.