Justiciability of Parliamentary No-Vacancy Decisions pursuant to Article 49A of the Federal Constitution

Justiciability of Parliamentary No-Vacancy Decisions pursuant to Article 49A of the Federal Constitution

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.

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Why The Member of Parliament for Pasir Gudang Is Wrong About Najib’s Disqualification

Tan Sri Azhar bin Azizan Harun, the Speaker of the House of Representatives, has ruled that Dato’ Sri Haji Mohammad Najib bin Tun Haji Abdul Razak (“DSNR“) will remain the Member of Parliament for Pekan until the disposal of the latter’s motion for review in the Federal Court and/or the latter’s petition for a pardon.[1]

Hassan bin Abdul Karim, the Member of Parliament for Pasir Gudang, disagrees with Tan Sri Azhar bin Azizan Harun on, amongst others, the following grounds:[2]

(a) DSNR has been disqualified as a Member of Parliament as soon as the Federal Court handed its decision;

(b) The royal pardon proceeding has not been heard;

(c) The Royal Pardon Board is not a court; and

(d) It is not stated in the Federal Constitution that if a Member of Parliament petitions to the Pardons Board or applies for a review of the Federal Court’s decision that his/her qualification as a Member of Parliament remains.

With all due respect to YB Hassan, all of his contentions do not hold water.

Article 48(1) of the Federal Constitution, which he is relying on, expressly begins with the phrase “Subject to the provisions of this Article.”

This would mean that Article 48(1)(e) of the Federal Constitution, which YB Hassan is relying on to automatically disqualify DSNR as a Member of Parliament, has to be read together with the other provisions in Article 48 of the Federal Constitution.

Article 48(4) of the Federal Constitution has various sub-provisions of relevance.

Article 48(4)(b) and (c) of the Federal Constitution provides:

“Notwithstanding anything contained in the foregoing provisions of this Article, where a member of either House of Parliament becomes disqualified from continuing to be a member thereof pursuant to paragraph (e) of Clause (1) or under a federal law made in pursuance of Clause (2)—

(b) if within the period of fourteen days specified in paragraph (a) an appeal or any other court proceeding is brought in respect of such conviction or sentence, or in respect of being so convicted or proved guilty, as the case may be, the disqualification shall take effect upon the expiry of fourteen days from the date on which such appeal or other court proceeding is disposed of by the court; or

(c) if within the period specified in paragraph (a) or the period after the disposal of the appeal or other court proceeding specified in paragraph (b) there is filed a petition for a pardon, such disqualification shall take effect immediately upon the petition being disposed of.” (Emphasis mine)

As DSNR appealed to the Federal Court, DSNR’s disqualification from being a Member of Parliament would only take effect 14 days after the disposal of his Federal Court appeal.

The Federal Court handed its decision, in relation to DSNR’s appeal, on 23rd August 2022.[3]

However, within the 14 days from the 23rd August 2022:

(a) DSNR filed a petition for a pardon, on 2nd September 2022;[4] and

(b) DSNR filed a motion for review against the Federal Court’s decision, on 6th September 2022.[5]

This would mean that Article 48(4)(b) and (c) of the Federal Constitution has come into play to “stay” (read: pause) DSNR’s disqualification as a Member of Parliament.

DSNR will only be disqualified as a Member of Parliament upon the expiry of fourteen days from the date of the disposal of his motion for review in the Federal Court or immediately upon the disposal of his petition for a pardon (whichever is later).

Granted, DSNR’s petition for a pardon has not been disposed of by the Pardons Board. However, Article 48(4)(c) of the Federal Constitution applies as soon as DNSR’s petition for a pardon has been filed.

Further, it is also granted that the Pardons Board is not a court. However, YB Hassan appears to be conflating between Article 48(4)(b) and (c) of the Federal Constitution.

Article 48(4)(b) of the Federal Constitution would apply to DNSR’s motion for review while Article 48(4)(c) of the Federal Constitution would apply to DNSR’s petition for a pardon.

Editor’s Note: This article also appeared on Malay Mail, The Malaysian Insight, and Malaysia Now

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