At the time of writing, six (6) former Parti Pribumi Bersatu Malaysia (“Bersatu”) Members of Parliament [collectively referred to as the “Bersatu Six”] had declared their support for the present Prime Minister[1] and had been expelled from Bersatu for the same.[2]

Datuk Seri Dr Ronald Kiandee (in his capacity as Bersatu’s chief whip) then wrote to the Speaker of the lower House of Parliament to notify the latter that a vacancy has occurred in relation to the parliamentary seats of the Bersatu Six.[3]

Tan Sri Dato’ Johari bin Abdul, the Speaker of the lower House of Parliament, ruled vide two letters dated 9th July 2024 that the Bersatu Six did not need to vacate their respective seats in the lower House of Parliament (“Bersatu Six Decision”).[4]

The Bersatu Six Decision is an example of a no-vacancy decision delivered by the Speaker of the lower House of Parliament pursuant to Article 49A of the Federal Constitution.

No-vacancy decisions in the context of State Legislative Assemblies have been held by the courts to be non-justiciable as a result of Article 72(1) of the Federal Constitution.[5]

Article 72(1) of the Federal Constitution is in pari materia with Article 63(1) of the Federal Constitution, and the latter provides that:

“The validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any court.”

Professor Dr. Nik Ahmad Kamal rightly pointed out the pertinent question to be answered in relation to the justiciability of parliamentary no-vacancy decisions pursuant to Article 49A of the Federal Constitution:

“The question is whether the House Speaker’s decision under Article 49A(3) is a ‘proceeding’ in the context of clause (1) of Article 63. If it is a ‘proceeding’ of the House, the decision is not challengeable in a court of law.”[6]

The Federal Constitution itself is silent on the definition of “proceedings”.

Strictly speaking, the Bersatu Six Decision was delivered by the Speaker of the lower House of Parliament vide letters and not during parliamentary sittings. One could argue that letters sent by the Speaker do not fall within the scope of “any proceedings in either House of Parliament or any committee thereof”.

Having said that, a similar challenge was mounted in Teng Chang Khim (appealing as speaker of Selangor State Legislative Assembly) v Badrul Hisham bin Abdullah & Anor [2017] 5 MLJ 567 [“Teng Chang Khim”] relation to a no-vacancy decision in the Selangor State Legislative Assembly which was delivered during a press conference.[7]

The Federal Court in Teng Chang Khim held that the no-vacancy decision was entitled to parliamentary privilege and thus non-justiciable as it was ‘connected with the essential business’ of the State Legislative Assembly:

“[51]  In conclusion, we are of the view that in the present case, the speaker was acting within the limits of the power given to him under art 69 of the Selangor Constitution when he declared the N46 Pelabuhan Klang Constituency seat vacant. Even though the declaration was made outside the SLA proceedings, it was inevitably connected with the essential business of the SLA, made within the parameters set out by art 69 of the Selangor Constitution, and was made to regulate the internal affairs of the SLA. Consequently, we rule that the speaker’s act is non-justiciable and the speaker is entitled to the protection of parliamentary privilege enjoyed by the SLA as provided for under art 72(1) of the Federal Constitution and paras 2–3 of the Schedule to art 77 of the Selangor Constitution.”[8] (Emphasis mine)

In Ronald Kiandee & Anor v Dato’ Johari bin Abdul (disaman sebagai Yang di-Pertua Dewan Rakyat) & Ors [2023] MLJU 2798 [“Ronald Kiandee”], a case which involved the justiciability of parliamentary no-vacancy decisions pursuant to Article 49A of the Federal Constitution, Amarjeet Singh J applied the ‘essential business‘ test and held that such decisions are non-justiciable:

“[23]  The provision is clear that the casual vacancy is to be established by the Speaker. That is what the Speaker did. The Speaker acted within the power conferred upon him under Article 49A(1) read with Article 49A(3) of the Federal Constitution and decided that there was no vacancy. It is pertinent to note that it was the 1st applicant who wrote to the Speaker to invoke his powers under Article 49A(3) to establish that the said four seats were vacant for breach of the Article 49A(1) of the Federal Constitution.

[24]  It is well established and is settled law that the decision of the Speaker in deciding whether there is a casual vacancy in the legislature is an internal matter of the legislature falls within the privilege of the legislature and therefore protected under Article 72(1) of the Federal Constitution (see Teng Chang Khim v Badrul Hisham Abdullah & Anor [2017] 9 CLJ 630; [2017] 5 MLJ 567). In this regard it is crucial to note that Article 72(1) of the Federal Constitution is in pari materia with Article 63(1) of the Federal Constitution …

[29]  Thus, if the Speaker is acting within the powers conferred upon him by the Constitution, whether State or Federal, in declaring a seat vacant, which is inextricably connected with the essential business of the legislature, such act is non-justiciable and the Speaker is entitled to the protection of parliamentary privilege enjoyed by the SLA as provided for under Articles 63(1) or 72(1) of the Federal Constitution.”[9] (Emphasis mine)

The Applicants in Ronald Kiandee have since appealed to the Court of Appeal (Civil Appeal No. W-01(IM)-618-11/2023), and the matter has been fixed for hearing on 30th October 2024. It remains to be seen whether the appellate courts will adopt the ‘essential business’ test for parliamentary no-vacancy decisions pursuant to Article 49A of the Federal Constitution and/or uphold the non-justiciability of such decisions.


[1] FMT Reporters. “6th Bersatu MP backs Anwar”. Free Malaysia Today, 24 January 2024,  https://www.freemalaysiatoday.com/category/nation/2024/01/24/6th-bersatu-mp-backs-anwar/. Accessed 11 July 2024.

[2] “Six rogue MPs lose Bersatu membership for supporting Anwar”. The Star, 2 June 2024, https://www.thestar.com.my/news/nation/2024/06/02/six-rogue-mps-lose-bersatu-membership-for-supporting-anwar. Accessed 11 July 2024.

[3] Povera, Adib. “[UPDATED] Bersatu submits notice to Dewan Rakyat Speaker on status of 6 rogue MPs”. New Straits Times, 20 June 2024, https://www.nst.com.my/news/politics/2024/06/1066024/updated-bersatu-submits-notice-dewan-rakyat-speaker-status-6-rogue-mps. Accessed 11 July 2024.

[4] Teoh, Shannon. “Malaysia Speaker rules opposition MPs can keep seats despite backing PM Anwar”. The Straits Times, 10 July 2024, https://www.straitstimes.com/asia/se-asia/no-vacancies-malaysia-speaker-rules-opposition-mps-can-keep-seats-despite-backing-pm-anwar. Accessed 11 July 2024.

[5] Wu Kai-Ming, Joshua. “Responding to Challenges to the Legality of the One-Day Parliamentary Sitting”. Joshua Wu, 20 May 2020, https://joshuawu.my/responding-to-challenges-to-the-legality-of-the-one-day-parliamentary-sitting/. Accessed 11 July 2024

[6] “Journal of the Malaysian Parliament Volume 3 – 2023”. Parlimen, https://journalmp.parlimen.gov.my/jurnal/index.php/jmp/article/download/112/49/628. Accessed 11 July 2024.

[7] Teng Chang Khim (appealing as speaker of Selangor State Legislative Assembly) v Badrul Hisham bin Abdullah & Anor [2017] 5 MLJ 567 (FC), at para 17

[8] Teng Chang Khim (appealing as speaker of Selangor State Legislative Assembly) v Badrul Hisham bin Abdullah & Anor [2017] 5 MLJ 567 (FC), at para 51

[9] Ronald Kiandee & Anor v Dato’ Johari bin Abdul (disaman sebagai Yang di-Pertua Dewan Rakyat) & Ors [2023] MLJU 2798 (HC), at paras 23, 24, and 29