A seven-member bench chaired by Chief Justice Tengku Maimun Tuan Mat said Article 14A of the state constitution is also not void as it is consistent with Article 10(1)(c) of the Federal Constitution.
“In our view, the respondent (the state legislature) was entitled to enact the law to determine membership qualification,” she said.
This issue came about in 2020 after four Penang assemblymen filed an action to challenge a motion introduced by the state assembly’s speaker for them to vacate their seats and for by-elections to be held, after they defected from Pakatan Harapan.
The assemblymen are Zulkifli Ibrahim (Sungai Acheh), Dr Afif Bahardin (Seberang Jaya), Khaliq Mehtab Mohd Ishaq (Bertam) and Zolkifly Lazim (Telok Bahang).
On April 12, the Penang High Court allowed an application by the Penang state assembly and its speaker to refer to the Federal Court to determine whether the state’s anti-hopping law violated the constitutional right to freedom of association.
In the oral ruling, Tengku Maimun said the Federal Constitution did not guarantee elected assemblymen the fundamental right to change political party membership.
“The right to be members or remain as members is not guaranteed under Article 10(1)(c) of the Federal Constitution. Membership is determined by federal or state constitutions,” she added.
The top judge said the ability of elected representatives to change their membership of a political party was part and parcel of parliamentary democracy.
She said changing membership also could not take the character of ordinary citizens on their right to freedom of association.
“As such, it can be validly restricted and passed by the legislature,” she added.
For that matter, Tengku Maimun said, the 1992 Federal Court ruling in Kelantan state legislative assembly v Nordin Salleh was also overruled to a certain extent.
Nordin (Sungai Pinang) and Wan Mohamed Najib Wan Mohamad (Limbongan) had won their state seats under the then-Semangat 46 ticket in the 1990 general election.
However, both defected to Umno in 1991. The Kelantan state assembly amended the state constitution and passed an anti-hopping law that took retrospective effect from Nov 18, 1990.
The state speaker declared the seats vacant and both men contested again in by-elections but lost.
The duo then sought legal remedy and the Supreme Court in 1992 held that the amendment to the state constitution was designed to enforce party discipline, not impose restrictions on state assemblymen.
The court said the amendment breached Article 10 of the Federal Constitution, which guaranteed freedom of association.
Nordin and Wan Mohamed were subsequently reinstated as assemblymen.
In today’s judgment, Tengku Maimun said the nature of elected representatives, once in the legislature, took a different character, in that their personal right to associate must be based on the mandate given by the electorate.
The bench then directed the Penang High Court judge to proceed with a hearing in accordance with today’s judgment or otherwise in accordance with the law.
Others on the bench were Nallini Pathmanathan, Vernon Ong, Mary Lim, Harmindar Singh Dhaliwal, Rhodzariah Bujang and Zabidin Mohd Diah.
Lawyers Malik Imtiaz Sarwar and A Surendra Ananth appeared for the speaker and the state assembly.
Counsels DP Naban, Rosli Dahlan, Chetan Jethwani and Siva Kumar Kanagasabai represented the assemblymen.
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