BERSATU will sue to challenge Dewan Rakyat Speaker Johari Abdul’s decision to allow four Sabah MPs to keep their parliamentary seats following their departures from the party.

“It’s up to Bersatu (to refer case to the courts). They have the right to do so,” Johari told Bernama. 

Johari is right. But I reckon that it will be a tough challenge.

This is in light of a strong majority decision (7:2) from the Federal Court in the recent case of Speaker of Dewan Undangan Negeri of Sarawak Datuk Amar Mohamad Asfia Awang Nassar v Ting Tiong Choon & Ors and other appeals (2020) 4 MLJ 303.

The facts of the case are simple and straightforward.

In January 2010, Ting, who was born in Sarawak, acquired Australian citizenship. He renounced that citizenship five years later and his renunciation was accepted by the Australian government with effect from April 4, 2016.

Three weeks after that date, Ting filed his nomination to stand in the state elections for a seat in the Sarawak assembly.

On polling day, he defeated his three rivals to become the assemblyman for Pujut. One of the defeated candidates, Hii, petitioned the election court to nullify Ting’s win on the grounds that under article 17(1)(g) of the Sarawak Constitution, Ting’s Australian citizenship disqualified him from election to the state assembly.

The petition was struck out on a technicality without hearing of its merits. Hii did not appeal.

Some months thereafter, a minister in the Sarawak cabinet tabled a motion in the Sarawak assembly under article 19(1) of the Sarawak Constitution for a resolution that Ting be disqualified under article 17(1)(g) from being a member of the Sarawak assembly.

Article 19(1) states that if any question arises whether the speaker or a member of the Sarawak assembly has ceased to be qualified for appointment or election as such, the decision of the Sarawak assembly “shall be taken and shall be final”.

By an overwhelming majority, the Sarawak assembly voted in favour of the ministerial motion.

Ting successfully applied to the High Court to set aside the Sarawak assembly’s decision. The High Court ruled that the Sarawak assembly had no power to disqualify Ting under article 17(1)(g) because that provision only applied to disqualify a person from standing for election to the Sarawak assembly – referred to as a pre-election disqualification.

Article 19(1), on the other hand, refers to a member of the Sarawak assembly who had “ceased to be qualified for appointment or election …” to the Sarawak assembly – referred to as a post-election disqualification incurred by a member after he had been elected to the Sarawak assembly.

The High Court, accordingly, ruled that under article 19(1), the Sarawak assembly could only act in respect of a post-election disqualification and not a pre-election disqualification.

The court further found that the proceedings that took place in the Sarawak assembly against Ting had breached the rules of natural justice because Ting was not given time to prepare his defence to the motion to disqualify him and the speaker had not acted impartially.

The Court of Appeal (COA), by a 2:1 majority, dismissed the appeal against the High Court’s decision. The majority held that Articles 16 and 17 of the Sarawak Constitution deal with the disqualification of a person prior to election (in which event, the Election Court was the proper authority to rule on the alleged disqualification) whereas articles 18 and 19 deal with disqualification of an elected member post-election (in which case, the Sarawak assembly had the jurisdiction to determine the matter).

The majority ruled also that since the Sarawak assembly had not acted within its jurisdiction in Ting’s case, it could not invoke article 72 of the Federal Constitution to say that the validity of its proceedings could not be questioned by the court. The COA, however, did not consider the issue of the alleged breach of the rules of natural justice.

The minority judgment of the COA essentially held that matters concerning membership of the Sarawak assembly and disqualification of members (including the motion to disqualify Ting) were related to the internal management and core or essential business of the Sarawak assembly and were not open to interference and scrutiny by the courts.

Accordingly, the ministerial motion and the decision to disqualify Ting were non-justiciable based both on article 19(1) of the Sarawak Constitution and article 72 of the Federal Constitution.

Leave to appeal to the apex court having been granted, the seven questions of law for the Federal Court to decide included:

1. Whether the Sarawak assembly had the power under article 19(1) of the Sarawak Constitution to decide on the continued membership of an assemblyman if his disqualification for election to the Dewan under article 17(1)(g) of the Sarawak Constitution was raised in the Sarawak assembly Dewan at any time; and

2. Whether the business/proceedings of the Sarawak assembly were non-justiciable under article 19(1) of the Sarawak Constitution read with Article 72(1) of the Federal Constitution.

By a 7:2 majority, the Federal Court allowed the appeal, setting aside the decision of the COA and restoring the decision of the Sarawak assembly.

The majority ruled, among others, that:

1.  The Sarawak assembly had full jurisdiction, authority and power pursuant to articles 17(1)(g) and 19(1) of the Sarawak Constitution and Articles 48(1)(f) and 53(1) of the Federal Constitution to disqualify and remove Ting from the Sarawak assembly for having acquired Australian citizenship prior to his election and appointment to the Dewan; and

2. The majority of the COA failed to consider article 72(1) of the Federal Constitution, which prevented the courts from questioning the validity of any proceedings in the Sarawak assembly. So long as the Sarawak assembly had acted within the limits of its power, article 72(1) precluded the courts from interfering with the exercise of that power. The moving of the ministerial motion to decide on Ting’s qualification, the attendant debate on the motion and the voting on the motion were all matters that came within the core business of the Sarawak assembly. The whole proceedings therefore attracted privilege and remained inviolable.

The business of parliament and the Sarawak assembly are immune from judicial interference. The courts have no power to interfere with the internal management of the legislature, federal or state.

The immunity arises from the doctrine of separation of powers between the three principal organs of government – the executive, the legislature and the judiciary.

The effect of article 72(1) of the Federal Constitution is that the decision of the legislature “shall not be questioned in any court”.

The courts are therefore barred from questioning the validity of the decision taken by the legislature.

I reckon it will be tough to challenge the decision of the speaker. – January 18, 2023.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.