Is Penang's Anti-Hopping Law Unconstitutional?

Penang had just passed an anti-hopping law by way of an amendment to the Penang State Constitution that provides for a member of the State Assembly to vacate his/her seat when he/she leaves or is expelled from his/her political party upon which he/she had stood and been elected.


This is interesting in the light of Malaysian politics and democracy, where there had been instances in the past where state assemblymen and women had jumped ship (for one reason or another, mostly selfish monetary ones) and caused the fall of duly and democratically elected state governments like what happened to Sabah in 1994 and Perak in 2009


I guess Penang wanted to ensure that the democratic principle of sovereignty of people's choice of who forms the government of the day is not hijacked by unprincipled politicians on the look out only for their narrow self-interest.

The Penang government's move is a laudable one, but it is likely to face opposition as being unconstitutional.

No less than two prominent legal minds had said so.

UiTM Emeritus Professor of law Datuk Shad Faruqi, an expert in constitutional law, had said that the Penang state anti-hopping law contravened the people's constitutional right of association as per Art 10(1)(c) of the Federal Constitution and in light of the Supreme Court (now the Federal Court) decision in the Dewan Undangan Kelantan & Anor v Nordin Bin Salleh & Anor case concerning a similar Kelantan state anti-hopping law.

Even DAP's own parliamentarian and legal giant Karpal Singh, had said that the Penang anti-hopping law could not stand on its own and that he would try to move a Private Members Bill to amend the Federal Constitution to allow for the anti-hopping law.

Karpal is not likely to succeed because the Barisan coalition would unlikely agree and the Pakatan coalition does not have the 2/3 majority needed for the amendment to the Federal Constitution.

Well, what do I say? I say Penang should just  keep the law and let it be challenged.

Who knows, a new corum or panel of judges of the Federal Court may decide to depart from the earlier decision of the court in the Kelantan case. I am not too optimistic though, because our judges and courts are not known for being progressive, but no venture no gain.

I don't want to go into legalese or too much legal technicalities as this will bore readers and no less myself, and will stop me from quickly getting to what I want to say.

The objective of the anti-hopping law to prevent the undermining of parliamentary democracy that it is the people who determine who forms the government of the day is sufficient reason to restrict the exercise of an otherwise fundamental right as that of the right of association.

That much can be gleaned form the judgement of the Indian case of Mian Bashir Ahmad v The State itself. although the court there actually held that the anti-hopping law did not violate the constitutional  right of association.