THREE years ago, then Langkawi MP Dr Mahathir Mohamad and three other lawmakers (the plaintiffs) filed an application in the High Court by way of originating summons seeking, among others, declarations that the appointment and/or election of then speaker and deputy speaker of the Dewan Rakyat (first and second defendants) as invalid, on grounds it was unconstitutional and/or inconsistent with article 57 of the Federal Constitution and/or standing orders 3, 4, 6 and 47 of the Dewan Rakyat standing orders.

In support of their application, the plaintiffs contended that the parliamentary privilege afforded by article 63(1) of the Federal Constitution is not absolute and subject to the power and/or jurisdiction provided for the Dewan Rakyat, whether or not it is inherent or expressly provided for.

The plaintiffs were essentially saying the Dewan Rakyat had, through its appointments of the first and second defendants as the speaker and the deputy speaker, acted outside of the power or jurisdiction provided for it. This rendered the said appointments unconstitutional and unlawful, justifying judicial intervention in the Dewan Rakyat’s decision.

Given the plaintiffs’ contention, the High Court was drawn to consider the effect of article 63 of the Federal Constitution, which incidentally had been discussed in a plethora of cases.

The first is the case of Teng Chang Khim (appealing as speaker of Selangor State Legislative Assembly) v Badrul Hisham bin Abdullah & Anor (2017) where the Federal Court held that parliament and state assemblies are immune from judicial interference. The apex court said:

“The courts have no power to interfere with the internal management of Parliament or any State Legislative Assembly. This immunity arises from the doctrine of separation of powers between the three principal organs of government, namely, the executive, the legislature and the judiciary.”

The second is the case of Speaker of Dewan Undangan Negeri of Sarawak Datuk Amar Mohamad Asfia Awang Nassar v Ting Tiong Choon & Ors And Other Appeals (2018) where the Court of Appeal had the opportunity of referring to the above case where the issue of justifiability of parliamentary privileges had been discussed fairly extensively in a line of cases starting with Lim Cho Hock v. Speaker Perak State Legislative Assembly (1979) and Fan Yew Teng v. Government of Malaysia (1976). The appellate court duly noted:

“The doctrine of separation of powers between the executive, legislative and the judiciary requires the business of and how parliament and the State Legislative Assemblies manage themselves in the conduct of their business, to be immune or protected from judicial interference…. There is no change in the court’s stance on this principle.”

The third is the recent case of The Speaker of Dewan Undangan Negeri of Sarawak Datuk Amar Mohamad Asfia Awang Nassar v Ting Tiong Choon & Ors And Other Appeals (2020) where the Federal Court affirmed the principle that the decision of the Dewan Rakyat “shall not be questioned in any court”, but only so long as the house acted within the limits of its power.

The court would be in breach of article 72(1) of the Federal Constituion if it were to interfere with the exercise of that power.

That parliament must act within the limits of its power is illustrated in the case of Dewan Undangan Negeri Selangor & Ors v. Mohd Hafarizam bin Harun (2016). In that case a lawyer, acting upon instructions of his client, issued a letter of demand to the then assembly speaker demanding the payment for the costs of a civil suit initiated by the lawyer’s client against the then speaker.

The letter of demand was brought to the attention of the state assembly, which then passed as motion resolving that the lawyer and his client be referred to the Committee of Rights and Privileges on a charge of contempt.

The committee secretary issued a summons against the lawyer to appear before the committee and explain the alleged contempt. The lawyer then filed an originating summons on the grounds, among others, that the summons issued by the committee secretary violated the Federal Constitution and the Selangor State Constitution and was therefore unconstitutional.

The High Court found that resolution prescribing the alleged contempt and referring the lawyer to the committee was unconstitutional, being ultra vires the Schedule of the Selangor State Constitution and the assembly standing orders made pursuant to the Selangor State Constitution.

The Federal Court upheld the decision on grounds no provision had been made to provide for the offence of contempt the lawyer was charged with. The Federal Court said:

“It is our judgment that the state assembly must act within its constitutional and legal powers before passing a resolution of an act of contempt having been committed beyond the walls of the state assembly.”

Accordingly, the court must ascertain whether a particular power that has been claimed has in fact been provided for.

Bersatu’s application for leave to initiate a judicial review against Dewan Rakyat Speaker Johari Abdul and four MPs from Sabah may well turn on the question whether the speaker has been provided with the power to establish that an MP has ceased to become a member of the lower house and that his seat has become immediately vacant.

Is the power provided for in article 49A of the Federal Constitution?

High Court judge Amarjeet Singh will deliver his decision on November 16.

Salam Hari Merdeka 2023. – August 31, 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.