GEORGE TOWN, Aug 24 — The four Penang assemblymen facing the prospect of losing their seats under the state’s anti-hopping law will be filing amendments to their originating summons (OS) claiming that the law is in violation of freedom of speech under Section 10 (1) A of the Federal Constitution.

The counsel representing them, Chetan Jethwani, asked the Penang High Court for time to submit amendments to the originating summons filed against the Penang State Assembly and State Assembly Speaker to challenge the constitutionality of Article 14A(1) of the Penang State Constitution, and to stop the four seats concerned from being declared vacant pursuant to Article 14A(1).

He told the court that the plaintiffs wanted to submit amendments to the originating summons in light of the Federal Court’s decision declaring Article 14A(1) of the state constitution as lawful and consistent with Article 10(1)(c) of the Federal Constitution.

"We want to ask for our application to amend the OS to be heard as we want to explain why we seek these amendments,” he told the court today during the hearing of the originating summons.

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He was representing the four state assemblymen, Zulkifli Ibrahim (Sungai Acheh), Dr Afif Bahardin (Seberang Jaya), Khaliq Mehtab Mohd Ishaq (Bertam) and Zolkifly Md Lazim (Telok Bahang) who had filed three separate suits.

Judicial Commissioner Azizan Md Arshad initially refused to allow the plaintiffs to submit the amendment.

"Let me dispose of the OS first and you can then submit another OS instead of submitting an amendment to the OS,” he said.

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He further added that the OS was in relation to Article 10 (1) (c) on the right of the association while the amendment they seek is on Article 10A on the right to freedom of speech.

"The federal court decision didn’t stop them from talking, the freedom of speech is still there, they can still talk in Parliament or DUN,” he said.

He pointed out that the defendant’s counsel has also objected to this and that the court has to dispose of the OS after the federal court’s decision.

"Now the issue here is there is an OS, there was a question posed and it was referred to the Federal Court, they made a decision and sent it back for me to dispose,” he said.

"What you say now, whether it’s a live issue or not, it doesn’t matter, the issue is whether can we put that amendment for it to be decided with the OS,” he added.

Chetan argued that the assemblymen cannot exercise full freedom of speech and if they were to speak out against their respective parties, they will get sacked.

"This effectively muzzles them from speaking about anything,” he said.

To this, Azizan said the federal court decision was clear.

"Once they choose that group, have to comply with the group,” he said.

Surendra, who represent the defendants, said the application for amendment to the originating summons was a tactical manouvre. — Picture by Opalyn Mok
Surendra, who represent the defendants, said the application for amendment to the originating summons was a tactical manouvre. — Picture by Opalyn Mok

Meanwhile, Surendra Ananth, who is representing the defendants, told the court that the application to amend the OS was a tactical manoeuvre to delay the case.

"If they want to raise new arguments, they should file a new OS,” he said.

However, he said if the court decides to hear the application for the amendment, he asked that the court handles it urgently so that there is no more delay.

"This is because there is a consent order for the state not to present the motion for them to vacate their seats until the OS is disposed off in court,” he said.

Azizan finally allowed the plaintiffs time to submit an application to amend the OS after snidely asking if they could present the application today or if they needed four months to do it.

He gave them two weeks to submit the application in which their arguments will be heard on September 14 and after which, the OS will also be heard.

"I will give two weeks for both parties to argue on both the amendments and whether to ask for the OS to be strike out,” he said.

Later, outside the court room, Chetan said they will also be submitting another amendment to the OS to say that the state has no power to enact Article 14A without the federal amendment first.

Back in late 2020, the four state assemblymen filed three separate suits against the state legislative assembly and the state Speaker to challenge a motion introduced in October 2020 for the four to vacate their seats and by-elections to be held.

The motion was tabled under Article 14A of the Constitution of the State of Penang which stipulated that a member of the state legislative assembly shall vacate his seat if having been elected as a candidate of a political party, he resigns or is expelled from a party or having been elected otherwise than as a candidate of a political party, he joins a political party.

The law also stipulated that the state assemblyman is required to vacate his seat if the party is dissolved or its registration cancelled.

Zulkifli and Dr Afif, who were both elected under PKR, were terminated from PKR while Khaliq Mehtab and Zolkifly are still in Parti Pribumi Bersatu Malaysia, in which they were elected under.

In their suits against the state legislative assembly and the Speaker, the four refer a question to the Federal Court on whether Article 14A of the Penang constitution is void for being inconsistent with Article 10(1)(c) of the Federal Constitution.

Early this month, the Federal Court decided that Article 14A of the state constitution was consistent with Article 10(1)(c) of the Federal Constitution.

Due to the case still being heard in courts, the defendants have agreed to temporarily hold on from tabling the motions for the four to vacate their seats.