Reference is made to the press statement dated 30.8.2022 issued by YB Lim Guan Eng, the DAP National Chairman cum Member of Parliament for Bagan (“Press Statement”).
The Press Statement had proposed for the Penang State Legislative Assembly to hold a special sitting at end of September 2022 to amend the Penang State Constitution’s anti-hopping law (“Proposal”), namely Article 14A (“Art.14A”), in light of, among others, the following –
- the recent amendment to Article 10(1)(c) of the Federal Constitution on 28.7.2022 which will prevent anti-hopping amongst Members of Parliament (“Amended Federal Constitution”); and
- the announcement by the Sabah Chief Minister that the Sabah State Constitution will be amended to align with the Amended Federal Constitution.
With the greatest respect, the Proposal is untenable and if acted upon, would surely constitute a great disservice to the Penang voters.
It is a fact that –
- Art.14A provides for, among others, expulsion from one’s political party as a ground to vacate the Penang State Assembly seat(s) in question. While expulsion is not provided for under the Amended Federal Constitution, we must remind ourselves that Art.14A was enacted and passed in its current form (expulsion included) with more than 2/3 majority in the Penang State Assembly way back in 2012. This was done at a time when everyone including YB Lim and I, was fully aware of the 1992 Supreme Court’s decision concerning one’s right to association under the then Article 10(1)(c) of the Federal Constitution.
- prior to the Amended Federal Constitution, 4 individuals had commenced legal action to challenge the validity of Art.14A. In this regard, the Penang State Government then applied to refer a question of law for determination by the Federal Court of Malaysia i.e whether Art.14A is constitutional or otherwise (“Reference”).
- I had issued a statement on 29.7.2022 that Penang intends to amend the relevant provision to remain consistent with the Amended Federal Constitution. However, that same statement also referred to the Reference which was fixed for decision on 3.8.2022.
- the Federal Court of Malaysia on 3.8.2022, by way of a unanimous decision by a 7-judge bench, held that “Article 14A of the Penang State Constitution is not void as it is not inconsistent with Article 10(1)(c) of the Federal Constitution” [emphasis added] (“Federal Court’s Unanimous Decision”).
The Federal Court’s Unanimous Decision had also illuminated this important position –
“In our judgment, an elected representative’s ability to change or have changed his membership of a political party, for whatever reason, 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 and as such, can be validly restricted and regulated by laws passed, in this case by the State Legislature with the view to regulating the terms for qualification of membership…” [emphasis added].
Lest we forget, the Penang State Assembly in 2012 made the decision to press ahead with Art.14A guided by our belief that Penang voters deserve a stable and credible State Government that respects the given mandate. To now sing a different tune that compromises Art.14A, more so when our position is vindicated by the Federal Court’s Unanimous Decision, is short-changing everyone who believed in us.
I take this opportunity to state and reiterate the Penang State Executive Council’s decision on 5.8.2022 that –
- Art.14A shall remain as it is; and
- there shall not be any special sitting to amend the Penang State Constitution in respect of Art.14A.