Why ejecting pro-PN trio from Penang assembly is fraught with difficulties

The Penang Pakatan Harapan plans to remove three assemblymen over their support for the Perikatan Nasional government.

GEORGE TOWN: A constitutional lawyer says it will be impossible for the Penang state government to invoke the state’s anti-hopping law on two PPBM assemblymen for backing the Perikatan Nasional (PN).

Andrew Khoo, who is the co-chair of the Bar Council’s Constitutional Law Committee, said not only were there legal issues with the anti-hopping law, but the duo also did not switch parties.

Khoo reminded that a similar anti-hopping law in Kelantan was held to be unconstitutional, as the Federal Constitution allows for freedom of association.

Yesterday, the Penang Pakatan Harapan (PH) leadership unanimously passed a motion to vacate the seats of three assemblymen: PPBM’s Khaliq Mehtab Mohd Ishaq and Zolkifly Md Lazim, and PKR’s Afif Bahardin.

Penang Chief Minister Chow Kon Yeow said their removal was based on Article 14(a) of the state constitution, which allowed the assembly to vacate seats of members who switched parties.

Andrew Khoo

Khoo said Khaliq and Zolikfly had not left the party, but were going with PPBM’s decision to support the PN coalition.

But he said Afif, who has been suspended by PKR, could lose his seat due to a state law in which assemblymen expelled from their parties would have to resign.

Still, he said any attempt to remove all three would very likely be challenged in court.

Chow had said he was aware that the state’s 2012 anti-hopping law could be seen as unconstitutional in view of the Kelantan ruling, but felt the courts could relook the case to fit current times as the judgement was made some three decades ago.

The state’s anti-hopping law has never been used since it was enacted in 2012.

PH comprising DAP and PKR holds 34 seats in the 40-member assembly.

Khoo said arguments supporting the anti-hopping law would focus on how the law was needed to protect voters’ mandate.

“It could be argued that a voter voted for the representative in part because of his political party. Changing parties would in some ways be a betrayal of the trust placed by the voter in the elected representative,” he said.

Khoo added that the court would also have to consider whether stopping an elected representative from changing parties would violate his right to freedom of association under Article 10(1)(c) of the Federal Constitution.

In 1992, the Supreme Court ruled that Kelantan’s state law barring party-hopping was illegal as it violated Article 10(1)(c) of the Federal Constitution on freedom of association.

“Unless the facts and circumstances surrounding the Penang cases are significantly different, or new arguments are being advanced, I believe the courts will be bound by the previous decision in this matter,” Khoo said.

Khoo however pointed out that in 2009, the court had ruled in favour of the Bar in barring PKR’s Sivarasa Rasiah from holding positions in the Bar Council due to his political party membership.

“The court allowed an exception to the right to freedom of association,” he said.

“So the law in relation to the right to freedom of association has developed, and we need to wait to see how the courts will deal with the Penang case.”

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