The Speaker of Dewan Undangan Negeri of Sarawak Datuk Amar Mohamad Asfia Awang Nassar v Ting Tiong Choon (Q-01(A)-212-07/2017, Q-01(A)-250-07/2017 & Q-02(A)-1382-07/2017)

IN THE COURT OF APPEAL, MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: Q-01(A)-212-07/2017 THE SPEAKER OF DEWAN UNDANGAN NEGERI OF SARAWAK DATUK AMAR MOHAMAD ASFIA AWANG NASSAR ... APPELLANT

1. TING TIONG CHOON (WN K.P.: 651032-13-5119)

2. DATO SERI WONG SOON KOH

3. DEWAN UNDANGAN NEGERI OF SARAWAK

4. SURUHANJAYA PILIHAN MALAYSIA ... [In The Matter of the High Court of Sabah and Sarawak at Kuching Originating Summons No.: KCH-24-49/6-2017 (HC 1) In the matter of Articles 17(1)(g) and 26 of the Constitution of the State of Sarawak In the matter of Articles 118 and 121 of the Federal Constitution In the matter of Section 32(e) of the Election Offences Act 1954 And In the matter of Regulation 7 of the Election (Conduct of Elections) Regulations 1981 And In the matter of Section 25 of the Courts of Judicature Act 1964 And In the matter of Order 7 Rule 2 and/or 15 Rule 16 and/or Order 92 Rule 4 of the Rules of Court 2012 Between Ting Tiong Choon (WN K.P.: 651031-13-5119) Lot 1917, Second Floor Jalan Datuk Edward Jeli Piasau Industrial Estate, Miri ... Plaintiff And

1. The Speaker of Dewan Undangan Negeri of Sarawak Datuk Amar Mohamad Asfia Awang Nassar Dewan Undangan Negeri Sarawak, Petra Jaya, Kuching

2. Dato Seri Wong Soon Koh Level 7, Bangunan Baitulmakmur Medan Jaya, Petra Jaya, Kuching

3. Dewan Undangan Negeri of Sarawak Dewan Undangan Negeri Sarawak, Petra Jaya, Kuching

4. Suruhanjaya Pilihanraya Malaysia Tingkat 11, Bangunan Sultan Iskandar Jalan Simpang Tiga, Kuching ... Defendants] (heard together with) IN THE COURT OF APPEAL, MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: Q-02(A)-1382-07/2017

1. DATO SERI WONG SOON KOH ... APPELLANT

2. TING TIONG CHOON (WN K.P.: 651032-13-5119) ... RESPONDENT [In The Matter of the High Court of Sabah and Sarawak at Kuching Originating Summons No.: KCH-24-49/6-2017 Between Ting Tiong Choon (WN K.P.: 651031-13-5119) ... Plaintiff And

1. The Speaker of Dewan Undangan Negeri of Sarawak Datuk Amar Mohamad Asfia Awang Nassar

2. Dato Seri Wong Soon Koh

3. Dewan Undangan Negeri of Sarawak

4. State Government of Sarawak

5. Suruhanjaya Pilihanraya Malaysia (heard together with) ... Defendants] IN THE COURT OF APPEAL, MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: Q-01(A)-250-07/2017

1. DEWAN UNDANGAN NEGERI SARAWAK ... APPELLANT

2. TING TIONG CHOON (WN K.P.: 651032-13-5119) RESPONDENT [In The Matter of the High Court of Sabah and Sarawak at Kuching Originating Summons No.: KCH-24-49/6-2017 (HC 1) Between Ting Tiong Choon (WN K.P.: 651031-13-5119) ... Plaintiff And

1. The Speaker of Dewan Undangan Negeri of Sarawak Datuk Amar Mohamad Asfia Awang Nassar Dewan Undangan Negeri Sarawak, Petra Jaya, Kuching

2. Dato Seri Wong Soon Koh Level 7, Bangunan Baitulmakmur Medan Jaya, Petra Jaya, Kuching

3. Dewan Undangan Negeri of Sarawak Dewan Undangan Negeri Sarawak, Petra Jaya, Kuching

4. Suruhanjaya Pilihanraya Malaysia Tingkat 11, Bangunan Sultan Iskandar Jalan Simpang Tiga, Kuching ... Defendants] CORAM ABANG ISKANDAR BIN ABANG HASHIM, JCA MARY LIM THIAM SUAN, JCA HARMINDAR SINGH DHALIWAL, JCA DISSENTING JUDGMENT [1] These three appeals which were heard together arose out of the same decision made by the learned Judge on 17.6.2017. After hearing extensive submissions from all counsel involved, we reserved our decision. Having perused the records of appeals and having considered the oral and written submissions of all parties, this is my decision. [2] For ease of reference, the parties will be referred to as they were at the High Court. Undisputed facts [3] The plaintiff is a Malaysian citizen born in the State of Sarawak. In 1992, he received his MBBS degree from the University of New South Wales, Australia. On 20.1.2010, he acquired Australian citizenship and as mandated by the Constitution of Australia, he registered himself as a voter. On 4.4.2016, the Government of Australia approved and accepted the plaintiff's application to renounce his Australian citizenship. [4] On 25.4.2016, the plaintiff offered himself for nomination as a candidate for the State seat for the Constituency of Pujut (N.74). As part of the nomination process, the plaintiff affirmed a statutory declaration in Form 5A on 22.4.2016 stating that he had not lost any of his constitutional rights or by any written law pertaining to his eligibility to be a member of the Legislative Assembly of the State of Sarawak. Together with three others, the plaintiff's nomination was accepted by the Returning Officer. On 7.5.2016, the plaintiff polled the most votes, 8,899 votes with a majority of 1,759 votes and he was duly returned. [5] On 16.6.2016, Hii King Chong, one of the defeated candidates filed an election petition against the plaintiff seeking a declaration that the plaintiff was not duly elected or ought not to have been returned. The principal ground relied on was the matter of the plaintiff's Australian citizenship, that the plaintiff's nomination was ultra vires Article 17(1)(g) of the Constitution of the State of Sarawak. [6] On 14.10.2016, the Election Judge upheld a preliminary objection raised by the plaintiff and the Election Petition was dismissed with costs. [7] The $ 2^{nd} $ defendant is the Minister for International Trade and E-Commerce, Minister for Finance II and the Assemblyman for the State Constituency of Bawang Assan. On 4.5.2017, the Director of Criminal Investigations Department PDRM, Bukit Aman, informed the $ 2^{nd} $ defendant, that the plaintiff had renounced his Australian citizenship on 4.4.2016. However, at that juncture, the PDRM was not able to ascertain whether the plaintiff had exercised any right of citizenship of another country or that the plaintiff had made any declaration of allegiance to any country outside of Malaysia. [8] On 12.5.2017, the $ 2^{\mathrm{nd}} $ defendant, by way of a Ministerial Motion moved the State Legislative Assembly [State Assembly] to disqualify the plaintiff. The State Assembly voted and the Ministerial Motion was carried with 70 votes against 10 votes. Thereupon, the $ 1^{\mathrm{st}} $ defendant, the Speaker, announced that the plaintiff was disqualified under Article 17(1)(g) of the Constitution of the State of Sarawak and that the plaintiff forthwith, ceased to be a member of the State Assembly. [9] On 19.5.2017, the Election Commission, the $ 5^{\mathrm{th}} $ defendant, announced that the nomination of candidates for the State Constituency of Pujut (N.74) By-election will be held on 20.6.2017 and that polling will be held on 4.7.2017. The Originating Summons [10] The plaintiff filed the instant Originating Summons, seeking inter alia that the proceedings and the decision taken at the State Assembly on 12.5.2017 was null and void for being ultra vires the State Constitution and that the State Assembly has no power to disqualify the plaintiff under Article 17(1)(g) of the Constitution of the State of Sarawak. The plaintiff cited five defendants, namely the Speaker of the State Assembly, Wong Soon Koh [Minister for International Trade and E-Commerce, Minister for Finance II and the Assemblyman for Bawang Assan], Legislative Assembly of the State of Sarawak, the Government of the State of Sarawak and the Election Commission. [11] The Originating Summons proceeded only against the first three defendants after it was earlier struck out against the $ 4^{th} $ defendant [Government of the State of Sarawak] with no order for costs although the $ 5^{th} $ defendant [Election Commission] remained a party to the Originating Summons. [12] This is the Ministerial Motion moved under Standing Order 23(1)(a): YB Dato Sri Wong Soon Koh (N.53 Bawang Assan) moves: "WHEREAS Article 17(1)(g) of the State of Sarawak Constitution states that a person is disqualified from being elected as an elected member of Dewan Undangan Negeri if he has voluntarily acquired citizenship of or exercised rights of citizenship in or has made declaration of allegiance to any country outside the Federation." "AND WHEREAS by way of Statutory Declaration dated 22.4.2016, Honourable Member for Pujat declared that he has NOT lost the qualification to be elected as ADUN in breach of the Constitution." "AND WHEREAS Member for Pujat acquired the Australian citizenship on 20.1.2010." "AND WHEREAS Member for Pujat declared allegiance to Australia at the time of acquiring the citizenship." "AND WHEREAS Member for Pujat exercised his rights as a citizen by registering as a voter with the Australian Electoral Commission." "AND WHEREAS Member for Pujat was declared bankrupt twice in Australia." "AND WHEREAS Member for Pujat is completely unqualified, unfit an untrustworthy individual to be nominated and elected to represent the people of Sarawak." "AND WHEREAS as a result of his voluntary acts, Member for Pujat has ceased to be a Member of Dewan Undangan Negeri Sarawak due to the breaches of Article 17(1)(g) of the Constitution." THEREFORE IT IS MOVED THAT THIS HOUSE HEREBY RESOLVE THAT:- "Member for Pujat is disqualified under Article 17(1)(g) of the State of Sarawak Constitution to be a member and has ceased to be a member of the Dewan Undangan Negeri Sarawak forthwith." [13] As mentioned, the Motion was carried and the plaintiff ceased to be a member of the State Assembly. [14] Five agreed issues were posed for determination by the High Court: i. Whether the Ministerial Motion on $ 1 2^{th} $ May 2017 in respect of the disqualification of the plaintiff were matters within the jurisdiction of the $ 3^{rd} $ defendant and whether the matter is justiciable. ii. Whether the $ 3^{rd} $ defendant acted within its constitutional legal powers. iii. Whether the $ 3^{\mathrm{rd}} $ defendant had acted in accordance to the principles of natural justice. iv. Whether the decisions made on $ 1 2^{th} $ May 2017 by the $ 3^{rd} $ defendant are matters and questions within the provisions of the Constitution of the State of Sarawak that is final and cannot be challenged in any Court of law. v. (i) Whether the plaintiff breached the provisions of the Article 17(1)(g) of the Constitution of the State of Sarawak; and

(ii) What is the proper interpretation of the provisions of Article17(1)(g) of the Constitution of the State of Sarawak; and

(iii) Whether it is to be read in isolation or with Articles 24 and 27 of the Federal Constitution. Decision of the High Court [15] On 17.6.2017, the High Court answered the first issue in the positive, that the matters raised in the Originating Summons are justiciable and that the Court has the necessary jurisdiction to enquire. The learned Judge then found that the Ministerial Motion and the proceedings of the State Assembly on the morning of $ 1 2^{th} $ May 2017 to be unconstitutional and in violation of Article 118 of the Federal Constitution and is therefore null and of no effect. [16] The learned Judge further agreed with the plaintiff and inter alia held that the State Assembly is not a proper forum and has no power to disqualify the plaintiff as a sitting member of the State Assembly under Article 17(1)(g) of the Constitution of the State of Sarawak [Sarawak State Constitution] in respect of an alleged disqualification which was incurred before the plaintiff was elected as a member of the State Assembly [pre-election disqualification]. [17] The High Court also held that the language in Articles 18(2) and 19(1) of the Sarawak State Constitution are applicable only to disqualifications to which a sitting member incurs subsequent to his election [post-election disqualification]. The orders as sought by the plaintiff were then granted in the terms prayed together with orders of costs payable by the $ ^{1^{st}} $ and $ ^{2^{nd}} $ defendants to the plaintiff. [18] The $ 1^{\mathrm{st}} $ $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ defendants were dissatisfied with the decision and they filed their respective appeals as follows: i. Civil Appeal No.: Q-01(A)-212-07/2017 by the $ 1^{\mathrm{st}} $ defendant; ii. Civil Appeal No.:Q-02(A)-1382-07/2017 by the $ 2^{n d} $ defendant; iii. Civil Appeal No.: Q-01(A)-250-07/2017 by the $ 3^{rd} $ defendant. Submissions of the respective parties [19] All counsel made full and extensive submissions, both written and oral. I shall summarize the submissions that have been ably canvassed by the respective counsel as follows. i. Submissions of the 1 $ ^{st} $ defendant [Q-01(A)-212-07/2017] [20] The first issue before the Court is the matter of justiciability of the matter. The $ 1^{\mathrm{st}} $ defendant contended that by virtue of Article 72 of the Federal Constitution, the validity of the proceedings in the State Assembly are not open to scrutiny by the Court. This issue was in fact, recognized by the learned Judge who answered the poser in the affirmative but proceeded nevertheless to examine the decision of the State Assembly. [21] The $ 1^{\mathrm{st}} $ defendant relied on the decision of the Federal Court in Teng Chang Khin v Badrul Hisham Abdullah and Suruhanjaya Pilihianraya Malaysia [2017] 1 LNS 468 which held in clear categorical terms that the business of the State Assembly is immune from Court scrutiny. This case concerned the decision of the Speaker of the State Assembly of Selangor who had declared the seat of N46 Pelabuhan Klang constituency vacant when the State Assemblyman concerned was absent from the State Assembly for six months without the Speaker's leave. At the time of decision in the present appeal, this decision of the Federal Court had not been handed down. [22] On the issue of the disqualification of the plaintiff, it is the contention of the $ 1^{\mathrm{st}} $ defendant that the plaintiff breached Article 17(1)(g) of the Sarawak State Constitution in that he "has voluntarily acquired citizenship of, or exercised rights of citizenship in, any country outside the Federation or has made a declaration of allegiance to any country outside the Federation." Although the plaintiff renounced his citizenship on 4.4.2016, the renunciation is irrelevant because Article 17(1)(g) applies as soon as the plaintiff "voluntarily acquired citizenship of, or exercised rights of citizenship in, any country outside the Federation or has made a declaration of allegiance to any country outside the Federation." [23] According to learned counsel for the $ 1^{\mathrm{st}} $ defendant, a plain reading of Article 17(1)(g) shows that the disqualification applies as soon as the plaintiff acquires foreign citizenship, regardless what one does subsequently with that foreign citizenship. [24] In the reading of the Federal Constitution, it was erroneous of the learned Judge to read into Articles 17, 19 and even 118, the words "pre-election" and "post-election", which were conspicuously not in those provisions or any other provision in the Federal Constitution; more so after having said that "I am not prepared to read into Article 17(1)(g) something which is not there." The learned Judge had said that Article 17(1)(g) relates only to "pre-election" disqualification, and that a "pre-election" disqualification can only be raised by way of an election petition under Article 118. [25] Learned counsel for the $ 1^{\mathrm{st}} $ defendant contended that the reading and interpretation afforded by the learned Judge does violence to the clear language of Articles 17(1)(g) and 19(1) of the Sarawak State Constitution; and surely this cannot be the intent of these provisions of the Sarawak State Constitution. [26] Learned counsel for the $ 1^{\mathrm{st}} $ defendant also contended that the learned Judge had overlooked the fact that the Ministerial Motion was not about the conduct of the elections which may then fall within the domain or purview of Article 118 of the Federal Constitution; the Ministerial Motion was all about the disqualification of the plaintiff which is well within the ambit of Article 17(1)(g) of the Sarawak State Constitution. [27] It was the $ 1^{\mathrm{st}} $ defendant's further submission that Article 17(1)(g) of the Sarawak State Constitution must be read together with Articles 48(1)(f) and 53(1) of the Federal Constitution in that the matter of disqualification of a member of the House of Parliament or the State Assembly, as the case may be, is a matter to be decided by and within the House or Assembly, and not by the Court. In both cases, a member is disqualified where the member voluntarily acquires foreign citizenship or exercises a right of citizenship of a foreign country or declares allegiance to a country other than Malaysia. In the instant case, the plaintiff is disqualified because as a citizen of Australia, he would be mandatorily required to vote. Voting is an exercise of a right of citizenship. [28] Finally, the $ 1^{\mathrm{st}} $ defendant submitted that he did not remove the plaintiff; the plaintiff was removed by the State Assembly on a majority vote of 70:10. Since this was a decision of the State Assembly, the Dewan Undangan Negeri (Privileges & Powers) Ordinance 2007 [Cap. 65], in particular sections 3, 5, 7 and 10, read together with Articles 17(1)(g) and 19(1) of the Sarawak State Constitution provide that the matter of the disqualification of the plaintiff and the $ 1^{\mathrm{st}} $ defendant's involvement in that matter are protected from action and questioned in Court. This issue was not addressed by the learned Judge. ii. Submissions of the $ 2^{n d} $ defendant [Q-02(A)-1382-07/2017] [29] The appellant in the second appeal is the $ 2^{\mathrm{nd}} $ defendant. His counsel associated himself with and adopted the submissions of learned counsel for the $ 1^{\mathrm{st}} $ defendant and added inter alia the following submissions. [30] First, Articles 17(1)(g) and 19(1) of the Sarawak State Constitution expressly confer on the State Assembly the jurisdiction to decide on the disqualification of its members. There are no terms in these Articles prescribing or qualifying that these Articles operate or apply to "pre-election" or "post-election" disqualification. Instead of looking for "pre-election disqualification," the learned Judge should only be concerned with the issue of whether the State Assembly has the power to disqualify its members. The answer to that issue is clearly in the affirmative in which case, the matter is outside the scrutiny of the Court. [31] In any case, the reading by the learned Judge that it is only the Election Court and not the State Assembly which can decide on "pre-election disqualification" by virtue of Article 118 of the Federal Constitution leads to an "absurd situation". It is "absurd" in that "an elected member of the DUN who is subsequently found to be legally disqualified under the Constitution can never be removed if such disqualification is discovered after the expiry of the time period to file an election petition under section 38 of the Election Offences Act 1954 or if the disqualification is not otherwise adjudicated upon by the Election Court for any reason, as in the present case where the Election Petition was struck out on a technicality and the issue of the respondent's Australian citizenship was never decided by the Election Court." [32] The $ 2^{\mathrm{nd}} $ defendant also reads Articles 118 of the Federal Constitution and Articles 17 and 19 of the Sarawak State Constitution as covering "different and complementary areas." Article 118 expressly applies to challenging the "result of an election" whereas Articles 17 and 19 of the Sarawak State Constitution applies to "disqualification of a member." The provisions are therefore not in conflict and there is no question of Article 118 of the Federal Constitution "overriding" Article 19 or even Article 17 of the State Constitution. [33] Learned counsel for the $ 2^{\mathrm{nd}} $ defendant further submitted that the learned Judge posed wrong or irrelevant questions instead of considering whether the disqualification in Article 17(1)(g) is lifted when the plaintiff renounced his Australian citizenship. Had the learned Judge posed that material question, the answer would have been readily clear in that the disqualification remains regardless any subsequent renunciation of the Australian citizenship. [34] The learned Judge also erred in accepting the plaintiff's argument that "it cannot be that a foreigner who later became a Malaysian citizen has better rights compared to a citizen by birth who acquired foreign citizenship only to renounce that citizenship later, be worse off." Learned counsel submitted that Article 17(1)(g) has nothing to do with the issue of a foreigner taking Malaysian citizenship; instead it has everything to do with disqualification. Once disqualified under Article 17(1)(g), there are no provisions for the removal of that disqualification. The position of the foreign citizen stands distinctly separate and different from that of the Malaysian citizen who has acquired foreign citizenship, exercised rights of citizenship in another country or has made a declaration of allegiance to a country other than Malaysia. iii. Submissions of the $ 3^{rd} $ defendant [Q-01(A)-250-07/2017] [35] The $ 3^{\mathrm{rd}} $ defendant, represented by the State Attorney of Sarawak, is the appellant in the third appeal before us. Learned State Attorney similarly adopted the submissions of the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ defendants, emphasized the importance of proper interpretation of the Federal Constitution and the Sarawak State Constitution and, made the following further submissions. [36] Learned State Attorney submitted that in dealing with the issue of qualification and disqualification of the members of the State Assembly, Articles 16 to 19 must be read and construed together with a view to securing the mischief at which these provisions are directed. The mischief being that those who are not qualified or who are disqualified from standing for election to the State Assembly or being a member thereof, do not enter, and if they enter, they do not remain in the State Assembly. [37] Learned State Attorney pointed out that Article 17 provides for disqualification of members of the State Assembly, and the cessation of such disqualification. However, a careful reading of Article 17(3) reveals that, unlike the other disqualifications listed therein, Article 17(3) does not provide for the "removal, termination or forgiveness (e.g. by royal pardon)" of the disqualification by reason of citizenship in the terms set out in Article 17(1)(g)". Learned State Attorney added that the relevant question to ask is not whether the disqualification arises pre or post-election, but whether the challenge is to the election itself or to the continued presence of an elected member in the State Assembly. Where it is the earlier, then, rightly it should be by way of an election petition under Article 118 whereas in the case of the latter, Article 19 provides that the relevant time is "if the question arises" which is "whenever the question arises." Here, it arose when the Ministerial Motion was presented on 12.5.2017. [38] Learned State Attorney fortified his argument by referring to the terms of Article 53 of the Federal Constitution. Under that Article and Article 19 of the Sarawak State Constitution, when a motion is tabled on the question of whether a disqualification under Article 17(1)(g) ceases or is removed by a renunciation of the foreign citizenship, the question is one that necessarily falls within the jurisdiction of the State Assembly itself to determine. The question of the plaintiff's disqualification occasioned by his foreign citizenship and the effect of any subsequent renunciation falls precisely within that ambit. These provisions of the State Constitution and the Federal Constitution clearly mandate that a decision on a disqualification of a member is to be taken and decided entirely by the State Assembly itself. Once taken and decided, the State Assembly's decision shall be final. [39] It was further submitted that since every member of the State Assembly is required under Article 22, to take and subscribe to an oath prescribed in Part III of the Schedule, the voluntary acquisition of citizenship of another country amounts to a disqualification. According to learned State Attorney, this is because such an act is incompatible with the terms of the oath taken, that the member "will bear true faith and allegiance to the State of Sarawak and to the Federation." [40] As for the plaintiff's comparisons with a foreign national who acquires Malaysian citizenship, the submission is that such persons are on a completely different footing. From the specific terms of Article 17(3), a foreign national who acquires Malaysian citizenship and who pledges true allegiance to the Yang di-Pertuan Agong and to be a "true, loyal and faithful citizen of Malaysia" does not have better rights than citizens like the plaintiff. Such persons are specifically provided for under Article 17(3), unlike Malaysian citizens like the plaintiff who have acquired citizenship of another country sometime in their lifetime. iv. Submissions of the Election Commission [41] The Election Commission is a nominal party in these appeals. That, however, has not stopped learned Senior Federal Counsel from associating himself with the submissions of the appellants. [42] It is also the submission of learned SFC that the motion before the State Assembly was the disqualification of the plaintiff and not any question about the election. Now that the plaintiff has been elected, the power to deal with the issue of his disqualification and to disqualify the plaintiff in the State Assembly lies with the State Assembly. Not even the Election Commission has any power to determine that question. v. Submissions of the plaintiff [43] In response, the plaintiff submitted that the decision of the State Assembly to disqualify him as an elected member of the State Assembly under Article 17(1)(g) for an alleged disqualification incurred before his election is justiciable and open to challenge in Court. Article 72 of the Federal Constitution read with Article 19 of the Sarawak State Constitution allows such a construction. [44] Learned counsel relied on the authorities of Dewan Undangan Negeri Selanfor & Ors v Mohd Hafarizam bin Harun [2016] 7 CLJ 143, Yang Dipertua, Dewan Rakyat & Ors v Gobind Singh Deo [2014] 6 MLJ 812 and YAB Dato Dr Zambry bin Abd Kadir & Ors v YB Sivakumar a/l Varatharaju Naidu & AG Malaysia (Intervener) [2009] 4 MLJ 253. In all these cases, the Federal Court had held that the State Assembly must always act within the scope of its constitutional and legal powers before the protection under Article 72(1) of the Federal Constitution can arise. Since the State Assembly has exceeded its jurisdiction as provided under the Sarawak State Constitution, there is always room for judicial intervention. [45] On the question of the State Assembly's powers to disqualify its members, learned counsel submitted that it depends on the disqualification under scrutiny. The disqualifications set out in Article 17(1)(a) to (g) differ, some are prevailing while others concern pre-election disqualifications. Each has to be examine separately. [46] The plaintiff maintained that he is qualified to be elected as a member of the State Assembly under Article 16 of the Sarawak State Constitution; and that he is not disqualified under Articles 17(1), 18(2) and 19(1) of the Sarawak State Constitution, and Article 53(1) of the Federal Constitution. From the terms of Articles 18(2) and 19(1), it is also demonstrably clear that these two Articles contemplate a situation where a sitting member incurs or acquires disqualifications either subsequent to his election or during his tenure as a member of the State Assembly [post-election disqualification] and it is in this respect that the State Assembly has authority. These Articles do not apply to a candidate or a person who incurs disqualifications before he was elected as a member of the State Assembly. [47] Learned counsel for the plaintiff pointed out that both Articles 18(2) and 19(1) refer to the disqualification of a "member." Under Article 18(2), "if an elected member ceases to be qualified for election as a member of the Dewan" while under Article 19(1), it is "if any question arises as to whether a member of the Dewan has ceased to be qualified for election as such in Article 19(1). Both provisions speak of a member and a person may only be a member of the State Assembly after an election. [48] Like Article 53(1) of the Federal Constitution, Article 19(1) confers on the State Assembly, power to decide only on the question of post-election disqualifications or supervening disqualifications acquired subsequent to the election of the member to the legislature. The State Assembly "has no jurisdiction at all" to deal with pre-election disqualifications. [49] On the other hand, Article 17(1) refers to the disqualification of "a person" for being elected as a member of the State Assembly. Since the plaintiff is already a member of the State Assembly, Article 17(1) does not apply. [50] This distinct and separate difference in the terms used actually describes the different status that are under scrutiny. A person can only be a member after he has been elected and it is the State Assembly that will deal with the question of the disqualification of the member. When the State Assembly has taken a decision that an incumbent member is disqualified, that member's seat will then become vacant and the decision of the State Assembly on that disqualification is final. [51] Learned counsel for the plaintiff submitted that this reading does not necessarily mean that a person who is disqualified by reason of events occurring before his election is immune from challenge. There are separate provisions of the law dealing with such pre-election disqualifications of a candidate. For instance, regulation 7(1) of the Elections (Conduct of Elections) Regulations 1981 and this is consistent with Article 118 of the Federal Constitution which is "a specific and absolute bar to the Dewan to entertain the issue" and which provides that any pre-election disqualification may only be challenged by way of an election petition. Article 118 is an absolute bar to the State Assembly entertaining questions of alleged pre-disqualifications because the bar is couched in negative mandatory terms. [52] The plaintiff cites the following decisions from the Supreme Court of India in support: Election Commission of India v Saka Venkata Subba Rao, Union of India (1953) SCR 1144; Election Commission of India v Bajrang Bahadur Singh & Others, Special Leave Petition (Civil) No. 8850 of 2015; Karupati Maria Das v Dr Ambedkar Seva Samjam & Ors (2009) 7 SCC 387; Consumer Education & Research Society v Union of India & Others (2009) 8 MLJ 1420. In all these cases, the Supreme Court of India held that where the disqualification arose before the election, the proper forum to decide the matter is by way of an election petition. In such circumstances, Articles 190(3) and 192(2) of the Indian Constitution which are similar to Articles 18(2) and 19(1) of the Sarawak State Constitution, do not apply. The argument of the Attorney General that these provisions of the Indian Constitution apply to both pre and post-election disqualification was rejected by the Supreme Court. [53] Learned counsel for the plaintiff reiterated that in any event, the plaintiff was "indeed a qualified candidate for election at the time of the election on 7th May 2017 because he renounced his Australian citizenship on 4th April 2016, and has since, then been a Malaysian citizen." The relevant date for determining the qualification or disqualification of the plaintiff is at the time of election, which is 7.5.2017. For these reasons, any action based on the disqualification of the plaintiff under section 32(e) of the Election Offences Act 1954 will necessarily fail. Deliberations and decision [54] At the outset, let me say that I do not find the related proceedings before the State Assembly to be improper or questionable even though an election petition had earlier been filed, raising a similar ground. While the matter of the plaintiff's disqualification was taken up by way of an election petition and the Election Court had struck out the election petition following a preliminary objection, it is nevertheless open to the State Assembly to address the issue of the plaintiff's disqualifications for reasons that will become clearer when the questions concerning justiciability and disqualification are fully considered. [55] There are two primary issues for consideration: justiciability of the resolution and decision reached by the State Assembly, and the matter of the plaintiff's disqualification. A. Justiciability [56] These three appeals bring into sharp focus the principle of parliamentary privilege. If the principle applies in these appeals, the argument is that the plaintiff's application ought to have been dismissed for want of jurisdiction; frequently understood under the rubric of "nonjusticiability." The learned Judge had answered in the affirmative, finding the issue to be justiciable and within the purview of the Court's jurisdiction leading thus to the orders granted. [57] The respect for and abidance of this principle of parliamentary privilege is part and parcel of the doctrine of the separation of powers, a doctrine which is integral to the "basic structure" or "basic fabric" of the Federal Constitution. This doctrine was reaffirmed in the recent landmark decisions of the Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another Case [2017] 5 CLJ 526 and Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & 2 Others [2018] CLJ 123. These pronouncements speak volumes of the importance of this fundamental and essential doctrine. [58] Respect for the principle of parliamentary privilege means that decisions on and related to the essential core business and internal managements of Parliament and the respective State Legislative Assemblies are immune from being called in question in Court. This means too, that there is finality in such decisions. This immunity which is actually guaranteed and deeply entrenched in Article 72(1) of the Federal Constitution and in the respective Constitutions of the States of the Federation, was recently reaffirmed by the Federal Court in Teng Chang Khim v Badrul Hisham Abdullah and Suruhanjaya Pilihanraya Malaysia [2017] 1 LNS 468. [59] As pointed out earlier, at the time of the decision of the learned Judge, the Federal Court's decision in Teng Chang Khim v Badrul Hisham Abdullah had yet to be handed down. This Court has had the benefit of this decision and it bears careful and close examination against the backdrop of several other earlier decisions of the Court as well as some other case authorities. The decision of the Federal Court is not only of particular application to the facts and circumstances of the present appeals, the decision binds this Court on this first issue of justiciability. [60] In this decision, the Speaker of the State Legislative Assembly of Selangor had, pursuant to Article 69 of the Selangor State Constitution declared the seat of N46 Pelabuhan Klang constituency vacant due to Badrul Hisham, its State Assemblyman's absence from the State Legislative Assembly meetings for a period of six months without the leave of the Speaker. The Speaker explained the reasons for his action at a press conference and in a statement issued by him. [61] Bardul filed an Originating Summons seeking inter alia a declaration to the effect that the Speaker's decision to declare a vacancy of his seat was ultra vires Article 69 of the Selangor Constitution and/or is wrong and/or null and void. Bardul succeeded before both the High Court and the Court of Appeal. [62] At the Federal Court, the decision was reversed when the Federal Court concluded that the Speaker's action in declaring Badrul's seat vacant at a press conference "was in exercise of his functions to regulate the internal affairs of the SLA and was immune from challenge in Court". According to the Federal Court, "the declaration was purely made within the parameters set out by Article 69 of the Selangor Constitution. Secondly, the declaration was inevitably connected to the essential business of the SLA and was made in the performance of the Speaker's essential function as a Speaker." [63] In reaching that conclusion, the Federal Court acknowledged that the State Legislative Assemblies enjoy privileges and powers which were guaranteed under Article 72(1) of the Federal Constitution and in the case of the Selangor State Legislative Assembly, under Article 77 and the Schedule to its State Constitution. Amongst the privileges guaranteed was the freedom of speech and debate or proceedings in the Assemblies, that such speech, debate or proceedings "shall not be liable to be impeached or questioned in any Court or tribunal out of the Assembly." In short, the speeches, debates or proceedings of the members of the State Assemblies enjoy immunity and are not justiciable matters to be adjudicated by a Court of law. [64] What is noteworthy is the Federal Court recognizing that this issue of justiciability of parliamentary privileges has been discussed fairly extensively in a line of cases starting with Lim Cho Hock v Speaker, Perak State Legislative Assembly [1979] 2 MLJ 85, and, Fan Yew Teng v Government of Malaysia [1976] 2 MLJ 262. In Fan Yew Teng, the landmark decision of Bradlaugh v Gossett (1884) 12 QBD 271 was cited and discussed, and I shall return to this shortly. Two further significant decisions of the Federal Court were also examined - YAB Dato Dr Zambry Abd Kadir & Ors v YB Sivakumar Varatharaju Naidu; Attorney General Malaysia (Intervener) [2009] 4 CLJ 253); and Dewan Undangan Negeri Selangor & Ors v Mohd Hafarizam Harun [2016] 7 CLJ 143. [65] The Federal Court examined these decisions together with several other English authorities, the intent, as I see it, is to take stock and establish whither the approach on this by no means simple issue; whether there is a necessary and material distinction drawn between the decisions taken in-house or outside the parameters of the House [whatever that term may connote] such that the parameters have to be properly and clearly demarcated; whether the approach and considerations thus far have to revisited. [66] After careful and deliberate examination of all those decisions, the Federal Court concluded in clear unequivocal terms that it was convinced that: "...there can be no doubt that the business of Parliament and the State Legislative Assemblies are immune from judicial interference. 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." [emphasis added] [67] The view of the Federal Court is crystal clear - 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. From this decision as well as the decisions examined by the Federal Court, it is apparent too that there is no change in the Court's stance on this principle, that this has always been the approach, and this is evident even in Lim Cho Hock and both decisions of Fan Yew Teng v Setia Usaha, Dewan Ra'ayat & Ors [1975] 2 MLJ 40, and Fan Yew Teng v Government of Malaysia, although the Federal Court only referred to the latter of the two decisions. On the contrary, any attempt to revisit and reset the approach was turned down quite categorically and firmly by the Federal Court. [68] It is often overlooked what actually happened in the two cases involving Fan Yew Teng and I find it useful to take a quick look at these two cases and the decision in Lim Cho Hock. These decisions must however, be read with some care given that Article 48, as it now stands, was amended with effect from 16.12.1983, after these decisions. Clauses (4) and (5) were added to Article 48 vide Act A566. These amendments deal with the peculiar disqualification issues that arose in Fan Yew Teng; such amendments being necessary in view of the process and implications of appeals in criminal matters. Although the issue of justiciability was not specifically raised in the first of the two cases involving Fan, it is apparent that the Court tacitly accepted and respected the principle of parliamentary privilege. [69] Furthermore, while the Court may have examined the matter of disqualification in the context of Article 48(1)(e) read together with Articles 50(1) and 53 because of the nature of the disqualification under consideration where there are more elaborate provisions on how to deal with this specific disqualification by reason of conviction and sentence, the deliberations and observations of the Court in both decisions nevertheless apply equally to both the business of Parliament and the State Assemblies, and certainly, are of great significance and much help in the instant appeals. And, in my estimation, the views expressed by Mohamed Azmi J and Chang Min Tat J, remain relevant. [70] Both of these decisions relate to the matter of disqualification and membership of Fan Yew Teng [Fan] who had been returned a Member of Parliament for the Parliamentary Constituency of Menglembu in the General Elections held in August of 1974. On 13 January 1975, Fan was convicted at the High Court for an offence under the Sedition Act 1948 (Revised 1979) and sentenced to a fine of $2000 or six months imprisonment. Fan promptly appealed. By letter dated 4 February 1975, he was informed by the Setia Usaha, Dewan Ra'ayat, presumably on the direction of the Speaker, that on his conviction and sentence as aforesaid, he had become disqualified under Article 48(1)(e) of the Federal Constitution, and by virtue of Article 50(1), his seat had become vacant. A writ of election was issued by the Secretary to the Election Commission for the purpose of a bye-election. [71] Fan filed an originating summons seeking a declaration on the issue of whether his conviction and sentence automatically rendered his seat vacant in the Dewan Ra'ayat having regard to Article 53 of the Federal Constitution, the terms of which are set out for ease of reference and better appreciation of the arguments:

53. (1) If any question arises whether a member of a House of Parliament has become disqualified for membership, the decision of that House shall be taken and shall be final: Provided that this Article shall not be taken to prevent the practice of the House postponing a decision in order to allow for the taking or determination of any proceedings that may affect the decision (including proceedings for the removal of the disqualification).

(2) Where a member of either House of Parliament becomes disqualified under paragraph (e) of Clause (1) of Article 48 or under a federal law made in pursuance of Clause (2) of Article 48, Clause (1) shall not apply and he shall cease to be a member of that House, and his seat shall become vacant, immediately upon his disqualification taking effect in accordance with Clause (4) of Article 48. [72] In the first decision, Fan argued that his disqualification was not automatic and that he was entitled to show cause against any move to exclude him from the Dewan under Article 53 of the Federal Constitution. The defendant disagreed, contending that Article 53 applied only where the disqualification was doubtful and not where it is straightforward as is Fan's disqualification. [73] The issue before Mohamed Azmi J was on the interpretation and application of Article 53 read together with Articles 48 and 50(1). [74] In dealing with the matter, Mohamed Azmi J inter alia observed, in passing, that the Federal Constitution does not confer on the House the power to decide elections in disputes. Instead, the Federal Constitution confers on the House the power to decide on questions relating to the disqualification and membership of its members. And, when it comes to such questions, His Lordship found that once a question has arisen as to disqualification, it is "abundantly clear ... that Article 53 gives the House of Parliament the over-riding power to make decision as to disqualification. I find no other provision in the Constitution to suggest that the power to decide on the question of disqualification being given to any other body or person."- see page 43. [75] In coming to that finding and view, Mohamed Azmi J agreed with the submissions of both counsel that "the two Houses of Parliament are supreme and, if that is so, it follows that they should have the right to decide for themselves whenever a question or dispute arises as to membership amongst their members". His Lordship further found that "where a question or dispute has arisen whether a Member of Parliament has become disqualified, the seat of that particular member shall only become vacant when he becomes disqualified and the power to decide whether he becomes disqualified or not clearly rests with the Dewan to which he belongs by virtue of Article 53." [76] In other words, the House must be allowed to take the decision on whether its member has become disqualified. It starts with the House taking that question and making a determination. And, when a decision is indeed taken, that decision is final. It is also final as there is no other body or person who is empowered to make that determination. [77] Although Article 53 gives the House the power to decide on disqualification even where the member has not fully exhausted his legal rights against the conviction and sentence, Mohamed Azmi J recognized that the proviso to Article 53 leaves it open to "the House to postpone a decision in order to allow for the taking or determination of any proceedings that may affect its decision including proceedings for the removal of the disqualification of the member concerned". The House, of course, may choose not to postpone, illustrating thus the ambit and scope of that jurisdiction. [78] In support for the opinion expressed, Mohamed Azmi J cited Suffian FJ's views expressed at page 55 in his book entitled "An Introduction to the Constitution of Malaysia": "If a member of either House becomes disqualified for membership of that House, article 50(1) says that "his seat shall become vacant." It does not appear, however, that if, for instance he is declared a bankrupt, he automatically ceases to be a member, for article 53 provides that if any question arises whether a member has become disqualified for membership, the decision of the House shall be taken and shall be final. Court proceedings may, however, be taken that affect the decision and thereby the matter becomes sub judice or an application may be made to the Yang Dipertuan Agung to remove certain disqualifications; in either event the House may, if it likes, postpone a decision to allow such proceedings or application to be taken or made and determined." [emphasis added] [79] His Lordship then pronounced that Fan was entitled to exhaust his legal rights just as the House was entitled to decide on Fan's disqualifications at any time it deems fit. This would be by reason of the proviso to Article 53. [80] To me, the above arguments and the terms of the proviso implicitly recognize the right of the House to, itself, take a decision on a question of membership, including a disqualification of such membership. This option signifies that the jurisdiction and "over-riding power" lies with the House, and also the State Legislative Assemblies, to deal with this issue of disqualification and membership of its members. That jurisdiction is inherently part of the principle of parliamentary privilege enjoyed by all Parliamentarians and State Assemblymen. [81] Moving then to the second case of Fan Yew Teng v Government of Malaysia, the decision cited and relied on by the Federal Court in Teng Chang Khim v Badrul Hisham Abdullah. Against the same factual backdrop as in the earlier case, a motion was passed in the Dewan Rakyat that the question whether by reason of the conviction and sentence the plaintiff had become disqualified for membership of the House be referred to the Committee of Privileges and that the Committee be instructed to report to the House. Pending the report of the Committee, and, as described by the learned Judge, believing and fearing, "probably not without reason", that the process to disqualify him had started, the plaintiff applied to Court for inter alia the following declarations: "(1) that no question under article 53 of the Federal Constitution as to the plaintiff's disqualification for membership of the Dewan Rakyat has risen by the plaintiff's mere conviction and fine of $2000 in default six months' imprisonment on January 13 1975 (vide Selangor Criminal Trial No. 4 of 1974) on a charge under section 4(1)(c) of the Sedition Act (Revised 1969);

(3) that under article 53 of the Federal Constitution it is the Dewan Rakyat alone and no other authority or body which can go into the question relating to the plaintiff's disqualification as a member of the Dewan Rakyat." [82] The defendant filed an application to strike out the Originating Summons, inter alia on the ground that the reliefs were designed to prevent members of the Dewan from proceeding with a lawful part of parliamentary process of the Dewan. [83] Chang Min Tat J agreed with the defendant and Fan's application was dismissed. His Lordship was unequivocal in his findings that the reliefs sought by the plaintiff "are outside the jurisdiction of the Court." This conclusion was reached on strong and sound reasoning and I see no reason whatsoever not to adopt the same in the present appeals. [84] It was the insightful opinion of Chang Min Tat J that when it comes to parliamentary privileges, there are privileges enjoyed by the Dewan as well as privileges enjoyed by the individual members. Adopting Basu's view expressed in his Commentary on the Constitution of India, His Lordship opined that the justification for both privileges is however, the same, that is, in order that there be effective discharge of the functions of the House, its members must be "allowed to participate in its functions without disturbance or interruptions". Consequently, His Lordship concluded that it was established "clearly and beyond argument that the question whether a member of the Dewan Rakyat has become disqualified from membership by reason of his conviction and in this case, a fine of not less than $2000 is a matter concerning the combined privileges of the Dewan as well as the individual privileges of the member." [85] Having accepted that first principle, His Lordship was conscious as to the "real question", which is, what is the proper role of the Court in such matters, or "what role the Court has". This question seems to surface interminably despite these firm decisions of the Court; as it did in these and the present appeals. [86] Be that as it may, it will be readily seen from His Lordship's erudite deliberations, an admission that the control of each House over its internal proceedings is absolute and cannot be interfered with by the Courts; that the Courts have always refused to interfere in the application by the House of any of its recognized privileges. His Lordship reached this conclusion and admission after careful weightage of the various principles at play, and it would be useful if those deliberations are carefully considered as the parties in these appeals have once again, urged the Courts to play a role in matters concerning decisions taken in Parliamentary or State Legislative Assembly proceedings. In my respectful view, any role played by the Court, if there is one, is necessarily limited and circumscribed by this principle of parliamentary privileges. And, when it comes to matters taken within the business of the House, the Courts refrain from interfering. [87] Chang Min Tat J examined the approach in England and India since these two jurisdictions had seen a "large number of cases" on this question concerning the Court's role. The English position, as summarized in Erskine May's Parliamentary Procedure (17th Edition) at page 173, is a position reached by "tacit consent" where "the old dualism remains"- the decisions of the Courts are not accepted as binding by the House on matters of privilege, nor the decisions of the House by the Courts. His Lordship, however ventured to suggest that "since the House of Commons has not for a hundred years refused to submit its privileges to the decision of the Courts, it may be said to have given practical recognition to the jurisdiction of the Courts over the existence and extent of its privileges. On the other hand, the Courts have always, at any rate at the last resort, refused to interfere in the application by the House of any of its recognized privileges." [88] His Lordship further found, speaking in even stronger terms, S.A. de Smith's opinion expressed in S.A. de Smith's Judicial Review of Administrative Action (3rd Edition), that the "Courts have no jurisdiction to restrain by injunction, or otherwise to pass upon, any conduct that forms part of proceedings in Parliament, even though the matter in issue is not directly connected with the process of legislation." Citing Bradlaugh v Gossett (1884) 12 QBD 271, the writer added: "Assuming that the plaintiff was right in his contention that the order of the House was based upon the misconstruction of a statute, nevertheless the Courts had no jurisdiction to interfere, for the matter fell exclusively within the scope of the privilege of the House to regulate its own internal proceedings." [emphasis added] [89] As for the situation in India, His Lordship noted that the Supreme Court of India had refused to follow the English cases of Bradlaugh v Gossett as well as The Sheriff of Middlesex (1840) 113 ER 149, and Howard v Gossett (1845) 116 ER 139. The cases of Sharma's case AIR 1959 SC 395 and Special Reference No.1 of 1964 AIR 1965 SC 1893 were considered. Both cases deal with the validity of general warrants issued by the Speaker of a House of Parliament to punish for contempt of the privileges of the House; and the issue was whether such warrants could be scrutinized by the Court. [90] In answer to the notice to show cause issued and the action intended to be taken under the powers, privileges and immunities of the House as provided under Article 194(3), the complainant in Sharma's case claimed that there was a violation of certain of his fundamental rights guaranteed under the Indian Constitution. By majority, the Supreme Court held that the power to punish for contempt was a subsisting privilege of the House and, that there was no contravention of Article 21 safeguarding the right to protection of life and personal liberty except according to procedure established by law. The Supreme Court also applied a harmonious construction of the several provisions of the Constitution, holding that where there is a direct conflict between Articles 194(3) and 19(1)(a) [free speech and expression], the particular provision in Article 194(3) would prevail over the general provision in Article 19(1)(a). [91] The decision in Sharma was revisited in Special Reference No.1 of 1964. In this latter decision, the Supreme Court clarified that its earlier decision in Sharma did not lay down any general proposition that whenever there is any conflict between Article 194(3) and any of the provisions concerning fundamental rights, "the latter must always yield to the former". Article 194(3), however, did not confer on any Indian Legislature the right to commit by a general warrant which could not be examined by the Courts. The validity of such warrants could still be examined through habeas corpus or other proceedings. Lastly, the Supreme Court found that under Article 212 of the Indian Constitution, if the impugned procedure was illegal and unconstitutional, it would be open to the Court to scrutinize the question of its validity. What is prohibited is where the complaint is only on an irregularity of any proceedings in the Legislature of a State. [92] Having examined the jurisprudence from these two jurisdictions, Chang Min Tat J both cautioned and reminded himself on the similarities and differences between India and us. While we, like India, have a written Constitution, discerning the intention of the Constitution requires one to turn to the particular provisions of our Constitution to draw out whatever the intention. But, unlike India, parliamentary privileges are not spelt out under the Federal Constitution or any of the State Constitutions. Unlike India where the scrutiny of the Court is restricted to the validity of any proceedings in the State Legislature or Parliament, Chang Min Tat J noted that there is specific provision in Article 63 prohibiting the questioning in any Court of law the validity of any proceedings in either House of Parliament or any committee thereof. The terms of Article 63 thus, put paid to Fan's complaint; which as it were, turned out to be a complaint that the Court should tell the Dewan not to take any decision until Fan's appeal to the Privy Council and his application for pardon had been disposed with. Even in this respect, "on the proper and reasonable construction of this conditional clause", His Lordship was of the view that it was for Fan to make that submission to the Dewan, the forum where the decision is to be taken; and not "a matter for the interference of the Court." [93] Yet another distinction drawn by His Lordship is the difference between constitutional rights and legal rights. In India, the power given by the Indian Constitution to its High Court and the Supreme Court by Articles 226 and 32 respectively to issue directions, orders or writs for the enforcement of any of the rights conferred by Part III, i.e. the fundamental rights or for any other purpose, these provisions are "absent from the Federal Constitution. The right is conferred by rule 1 of the schedule to the Courts of Judicature Act 1964; and while I do not conceive that any High Court in this country will have any less hesitation in enforcing the fundamental liberties of the subject or citizen by entertaining such actions than the courts in India, there is still a distinction between a legal right and a constitutional right, however slight it may be." [94] Chang Min Tat J acknowledged that Fan's claim to continue to sit as a member of the House is actually a claim of a particular privilege of members of State Legislative Assemblies. Since there were no challenges or complaints of conflict between his fundamental liberties and the particular privilege, His Lordship held: "On this construction, I must necessarily go on to hold that this Court cannot interfere with the right of the Dewan to decide the question of the plaintiff becoming disqualified for membership or the corresponding right of the Dewan under the proviso to Article 53 to decide, if so minded, postponing taking a decision in order to allow for the appeal to be heard or for the plaintiff to make an application for pardon." [95] More interestingly were these strong concluding remarks made in relation to why the defendant's objection to being cited as a defendant were justified: "As to the question whether the Government of Malaysia is wrongly cited as the defendant to these proceedings, the contentions of the plaintiff, put in a nutshell are that the Government is a necessary party because it is interested in his expulsion and anyone who is interested could be cited as a defendant. The latter contention is plainly untenable. The former, when examined, obviously ignores the doctrine of the separation of powers provided in our Constitution and however Government as distinct from members of the Legislature may be said to be interested, it also ignores the fact that in the final say, it is the House itself which is concerned with and which alone has the powers to determine the question of its membership. The plaintiff himself must know this to be the whole truth. To be a member of the House does not necessarily mean that the member is a part of the Executive or Government. This is true as much for back-benchers as for members of the Opposition. To contend otherwise is to denigrate from the dignity and standing of the House as one arm of the sovereignty of the nation. This will be readily appreciated when it is realized that one of the most important of the Speaker's functions is to protect the House against the powers and encroachments of the Executive and to protect minorities within the House itself... The high water mark of the independence of the House of Commons from the Executive was reached in the reign of Charles I when Speaker Lenthall resisted the attempt of the Monarch to look for an arrest five members of the House of Commons in these classic words: "May it please Your Majesty, I have neither the eyes to see nor tongue to speak in this place, as this House doth direct me, whose servant I am." Whether the independence of the Dewan Ra'ayat is to reach and be maintained at this mark, it is for the members, amongst them, the plaintiff himself, as elected representatives of the electorate in their separate constituencies for whom they speak, to decide, but quite clearly, in respect of the disqualification of the plaintiff, neither Datuk Mohamed Rahman nor any member of the Government is interested or can vote save as a member of the House." [emphasis added] [96] Despite the passage of time, I do not see any difference between Fan's claims and the approach adopted by the two learned Judges in those two cases, with the plaintiff's claim in the present appeals. Both decisions concern the question of the member's disqualification and membership in the House or State Legislative Assembly, as the case may be. It is a claim of privilege of membership of the State Legislative Assembly and a right to have a seat in that Assembly. Such matters come squarely within the realm of privileges of parliamentarians and State Assemblymen, and as held thus far in these two decisions, are matters outside the jurisdiction of the Court. In my opinion, any issue or question concerning that disqualification and membership comes entirely within the compass of matters entrusted to the State Legislative Assembly to take. Once taken at its proceedings, the decisions enjoy immunity from scrutiny by the Courts of Justice. This respect for that parliamentary privileges is part of the high doctrine of the separation of powers. [97] I find further support for this view in Lim Cho Hock where the applicant was a member of the Perak State Legislative Assembly. He approached the Court for inter alia a declaration that the Speaker's seat was vacant by reason of "constitutional incapacity". The applicant claimed that since the Speaker had not taken his oath as required under article 47(1) of the Constitution of Perak read together with Order 1(c) of the Standing Orders of the Perak State Legislative Assembly, the Speaker's seat was therefore vacant. [98] Upon examining the relevant provisions of the Constitution of Perak and the Standing Orders of the Perak State Legislative Assembly, Abdoolcader J said in clear and unequivocal terms: "I have already referred to the provisions of Article 72(1) of the Federal Constitution which might perhaps also affect the position as well as the originating summons in raising the matter of the $ 1^{\mathrm{st}} $ respondent not having taken the oath as a member of the Assembly although he had in fact taken the oath as Speaker after his election as such under Standing Order 1(c) of the Assembly's Standing Orders might appear in effect to question the validity of the internal proceedings of the Assembly. In the light of these constitutional provisions, it is clear that the two matters raised in these proceedings are for the Assembly to decide and within its exclusive jurisdiction, and not for the Courts to determine. Unlike the lex et consuetudo parliament, the Assembly has control over its proceedings, procedures, members and may decide questions as to their qualifications and disqualifications. The provisions in the Federal and State Constitutions I have discussed crystallise and encapsulate this important principle of non-justiciability of its intra-mural activities in the Courts which may perhaps be appropriately termed the Bradlaugh principle, highlighted in Bradlaugh v Gossett as a result of the House of Commons in England preventing an elected atheist from exercising his statutory right of making the member's oath by affirmation. The oath being a precondition to the right to participate in proceedings of the House, the plaintiff was thus prevented from taking his seat. The Court ruled that the matter was not justiciable before it - only Parliament was competent to regulate and for that purpose judge the validity of its intra-mural activities." [emphasis added] [99] Therefore, in both the Fan Yew Teng cases and the decision in Lim Cho Hock, the Courts have remained steadfast in the approach to this "real question" concerning the Court's role; that the Courts will refrain from interfering. [100] Returning now to the Federal Court's recent decision in Teng Cheng Khin v Badrul Hisham where, as pointed out, the Federal Court reaffirmed the principle or parliamentary privileges in the terms already set out and discussed. This principle is readily applicable where the impugned decision or act is one which is clearly within the business of the House or the State Legislative Assembly, and where the decision or act takes place in proceedings in the House or the State Assembly. The problem, if not, the difficulty lies where the impugned act or decision takes place outside the walls of the State Legislative Assembly or is a decision taken by a committee established by the Assembly; as was the position in almost all the decisions that will be discussed and which are post Fan Yew Teng v Government of Malaysia. [101] It would appear that in those circumstances, the argument seems to be whether the Court should ask first and foremost, is there any legal authority, power or jurisdiction, inherent or express, to make or take that particular decision. It is only where there is power or jurisdiction to do so that the Court will respect and accord the principle of parliamentary privilege guaranteed under Article 72 of the Federal Constitution. Where there is none, the matter is then said to be justiciable and within the purview of the Court. This will become clearer when those decisions are considered. [102] First, the Federal Court's latest decision in Teng Chang Khim v Badrul Hisham Abdullah where on its peculiar facts, and this was Badrul's complaint, the act of the Speaker in declaring the seat of N46 Pelabuhan Klang Constituency vacant was not made during the proceedings of the State Legislative Assembly; it was made at a press conference and in a statement issued by the Speaker. According to the Federal Court: [25] The crucial issue now is whether there exists circumstances where words or actions taking place outside the walls of Parliament or State Legislative Assemblies are also protected by the doctrine of parliamentary privilege. [103] The Federal Court noted that a similar issue had arisen in Rv Chaytor [2010] 3 WLR 1707. A nine-member panel of the English Supreme Court had dismissed a defence of parliamentary privilege raised by Members of Parliament who had been charged with dishonestly submitting fraud claims for expenses allegedly incurred in travelling to Parliament. Although the Supreme Court upheld the principle of Parliament's exclusive jurisdiction over its internal affairs, that the Courts will respect the right of the House to "reach its own decision in relation to the conduct of its affairs", the Court rejected that contention on the basis that the submissions of travelling claims were completely unrelated to the internal business of the House. In considering whether actions outside the House and committees fall within "parliamentary proceedings" because of their connection to such proceedings, Lord Phillips MR said: "...it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament." [emphasis added] [104] Given then the starting principle that this entrenched right of Parliamentary privilege of immunity from Court scrutiny, the pertinent question to pose really is whether if the parliamentary privilege is not accorded or enjoyed, will the core or essential business of Parliament be adversely impacted. And, this takes me back to the two Fan Yew Teng cases where it was expressly held that both the Dewan and its individual members enjoy immunity and privilege for the same reason, and that is to ensure that they can discharge their fundamental functions effectively without disturbance or interruption. Consequently, where the answer to the poser is in the affirmative, that the core or essential business of Parliament or State Legislative Assembly will be effectively discharged, the privilege must be recognized and the immunity enjoyed. [105] To answer this question, it is therefore necessary to consider the nature of the connection between the impugned action or decision and the core or essential business of Parliament. On the facts in R v Chaytor, the answer was in the negative. Hence, the immunity or claim of parliamentary privilege was not available. [106] The Federal Court noted that the principle in R v Chaytor was accepted and applied by the Federal Court itself in its earlier decision in Teng Chang Khim v Dato' Raja Ideris Raja Ahmad & Ors [2014] 3 CLJ 173. This second decision of the Federal Court is equally insightful. [107] In Teng Chang Khim v Dato' Raja Ideris Raja Ahmad, a decision of the Federal Court also concerning the Selangor Legislative Assembly [SLA], the SLA had passed a motion to establish a Select Committee on Competence, Accountability and Transparency (SELCAT). The Speaker was the chairman of the committee whilst the committee members comprised elected members of the SLA. SELCAT's mandate was to conduct public hearings and evidence presented to SELCAT may be publicly disseminated or published. The respondent in the appeal inter alia challenged the composition of SELCAT, complained about its hearings and sought for a declaration that the formation of SELCAT and/or its proceedings are null and void and of no effect. [108] At the High Court, the appellants' application to strike out the Originating Summons under Order 18 rule 19(1) of the Rules of the High Court 1980 and/or the inherent jurisdiction of the Court, was allowed on the ground of non-justiciability and that SELCAT, as a committee of the SLA, enjoyed the same protection as proceedings of the SLA. The decision was however, reversed on appeal on the basis that there was a reasonable cause of action and that the Originating Summons should not be summarily struck out. [109] The Federal Court disagreed with the Court of Appeal. Citing the Privy Council decision in Rediffusion (Hong Kong) Ltd v Attorney General of Hong Kong (PC) [1970] AC 1136, the Federal Court was of the view that even where a case concerns a serious question of constitutional law, it may still be suitable for summary disposal under O 18 r 19. This, in fact, is one of the matters of appeal in the three appeals. [110] As for the question of parliamentary privilege and thereby the justiciability or otherwise of the question of whether the resolution of the SLA establishing SELCAT with the composition, powers and workings as passed in the resolution, and this forms the nub of the instant appeals, the Federal Court acknowledged that parliamentary privileges was derived not only from English law but is in fact entrenched in Article 63(1) of the Federal Constitution and applied to the State by virtue of Article 72(1) of the Federal Constitution, and is now encapsulated in paragraph 2 of the Schedule to the Selangor State Constitution. [111] It is interesting to note that after wrestling with this difficult but relevant question, the Federal Court firmly rejected the respondent's contention that relying on Rediffusion, that there was a shift in common law after Bradlaugh v Gossett [supra]; that the Court has jurisdiction to enter upon the inquiry of whether or not it would be lawful for the Legislative Council of Hong Kong to pass a proposed bill and that if the answer was in the negative, to decide in their discretion whether or not to grant the relief by way of a declaration and injunction. In Rediffusion, the Supreme Court of Hong Kong had held that the Court had jurisdiction to enter upon such an inquiry. That decision was upheld on majority by the Privy Council with Lord Diplock pronouncing as follows: "The immunity from control by the Courts, which is enjoyed by members of a legislative assembly while exercising their deliberative functions is founded on necessity. The question of the extend of the immunity which is necessary raises a conflict of public policy between the desirability of freedom of deliberation in the legislature and the observance by its members of the rule of law of which the Courts are the guardians. If there will be no remedy when the legislative process is completed and the unlawful conduct in the course of the legislative process will by then have achieved its object, the argument founded on necessity in their Lordships' view leads to the conclusion that there must be remedy available in a Court of justice before the result has been achieved which was intended to be prevented by the law from which a legislature which is not fully sovereign derives its powers." [112] The Federal Court further cautioned that the judgment of the Privy Council must be considered in the factual context of the case, and that the decision was also distinguishable from the facts in the particular appeal before the Federal Court. The legal principles that governed the jurisdiction of the English Courts to interfere in the conduct of proceedings in the fully sovereign Parliament of the United Kingdom could not be applied in Rediffusion as the members of the legislative assembly in a colony did not enjoy all those privileges and immunity from control by the Courts. According to the Federal Court: Legislatures in Malaysia. First, the legislature of Hong Kong was not a representative legislature. None of its members was elected. All of them, including the unofficial members, were appointed by or on behalf of the Crown. Second, and more importantly, the legislature of Hong Kong was not a fully sovereign legislature. These are clear from the judgment of Lord Diplock..." [113] The Federal Court opted instead, to continue to apply Bradlaugh v Gossett, as generally understood and applied in this country. I must add that the Federal Court in Teng Chang Khim v Dato' Raja Ideris Raja Ahmad & Ors accepted that the observations of the Court were made in the context of lex constuedo of a Supreme Parliament. Nevertheless, the Federal Court did not lose sight of the fact that in Malaysia there is no concept of Parliamentary supremacy; that it is one of constitutional supremacy (see Ah Thian v Government of Malaysia [1976] 1 LNS 3; and YAB Dato Zambry Abd Kadir & Ors v YB Sivakumar Varatharaju Naidu, Attorney General Malaysia (Intervener) [2009] 4 CLJ 253). [114] And, in this regard, articles 63 and 72 of the Federal Constitution clearly provide that the validity of its proceedings are immune from questioning in any Court. It was the view of the Court that while the declaration sought in the originating summons may have been about the composition of SELCAT, in effect, it questioned the validity of the resolution of the State Assembly establishing SELCAT. That resolution, passed without objection, was made in exercise of the State Assembly's collective and deliberative functions. The validity of such a resolution consequently, could not be impeached or questioned in any Court. The matter was therefore not justiciable and aptly should be struck out. [115] In reaching that decision, the Federal Court accepted that in its earlier decision in YAB Dato' Zambry Abd Kadir & Ors v YB Sivakumar Varatharaju Naidu, Attorney General Malaysia (Intervener), it had held that article 72(1) of the Federal Constitution must be read as being subject to the existence of a power or jurisdiction, inherent or express, to do whatever that has been done, and that the Court was empowered to ascertain whether the power that has been claimed has been provided for, thereby rendering the issues raised in that case justiciable. However, the Federal Court was of the view that the decision in Dato' Zambry "should be read in the factual context of the case" and that the ratio decidendi to be distilled from the judgment should be limited accordingly. [116] Ahmad Maarop FCJ, writing for the Federal Court in Teng Chang Khim v Dato' Raja Ideris Raja Ahmad, was the view that the alleged acts of contempt against the first applicant in Dato' Zambry, for holding himself out as Menteri Besar, against the other applicants for holding themselves out as Exco Members, for which they were all suspended, were all acts committed beyond the walls of the Legislative Assembly. The critical issue for the Court's determination was whether provision had been made for such contempt. The Federal Court found that there was no specific legal authority to punish for contempt, whether under the Perak State Constitution, the Assembly's Standing Orders or even the Perak Legislative Assembly (Privileges) Enactment 1959. It was in that context that the Federal Court expressed the view that article 72 must be read as being subject to the existence of a power or jurisdiction, whether inherent or expressly provided for, to do whatever that has been done. [117] The Federal Court was mindful to state that it did not believe that the decision in Dato Zambry "can be taken to have laid down the proposition that all acts of the Legislative Assemblies and that of their committees, or the Houses of Parliament and that of their committees are amenable to scrutiny and correction by the Courts, because that will render meaningless the constitutional immunity guaranteed under article 72(1) and article 63(1) of the Federal Constitution and paragraph 2 in the Schedule to the Selangor Constitutions (as well as Constitutions of other States having similar provisions)." As for the facts in Teng Chang Khim v Dato Raja Ideres itself, the Federal Court was clear that the resolution concerning SELCAT was made within the walls of the Assembly, and was therefore not justiciable. [118] In yet another decision concerning the State Legislative Assembly of Selangor, in Dewan Undangan Negeri Selangor & Ors v Mohd Hafarizam bin Harun [supra], the Selangor State Legislative Assembly had passed a motion resolving that the respondent, an advocate and solicitor who, acting on his client's instruction had issued a letter of demand for payment of costs awarded in a civil suit filed by his client against the Speaker, be referred to the Committee of Rights and Privileges of the State Legislative Assembly because the letter contained language that was indecent, insolent and threatening. [119] The Court had no difficulty or hesitation in finding that the resolution was passed beyond the walls of the State Legislative Assembly. There were no provisions, be it in the State Constitution or the Standing Order and the Contempt of the House (State of Selangor) Enactment 2009 which conferred the power to punish for contempt committed outside the State Legislative Assembly. At paragraph 50 of its judgment, the Federal Court found that where "the respective Legislative Assemblies had exceeded its jurisdiction as provided under the Constitution of each State hence there was room for judicial interference." [120] From all these decisions, it may therefore, be reasonably concluded as follows: First, the doctrine of parliamentary privileges is intrinsically part of the doctrine of separation of powers. Second, this doctrine is enshrined in Articles 63 and 72 of the Federal Constitution; and in the case of the State Assembly of Sarawak, further, in Article 19 of its State Constitution. Third, the doctrine of parliamentary privileges means that the House and the State Assembly, as the case may be, and its members, enjoy immunity from judicial interference. Fourth, the existence of this doctrine of parliamentary privilege is to ensure effective discharge of the functions of the House or the State Assembly by both the House and the State Assembly and its respective members. Fifth, the Courts respect that privilege and will not interfere in any parliamentary proceedings or internal management or core business of the House or State Assembly. Sixth, the Court will not interfere in those parliamentary proceedings, internal management or core or essential business of the House where such interference will impact adversely on the core or essential business of the House or the State Assembly. [121] From the decisions discussed, in particular the earlier decisions of Lim Cho Hock and Fan Yew Teng, and the recent decision of Teng Chang Khim v Badrul Hisham Abdullah, it is also plain that the matter of membership and the disqualification or loss of membership of the House or the State Assembly, as the case may be, is intrinsically related to the management and core or essential business of the House or the State Assembly. Any interference or scrutiny of any decision or related to such decisions of membership or disqualification of membership by the Court will undoubtedly, adversely impact or affect the efficient discharge by the members of their parliamentarian functions. These views have prevailed through these last sixty odd years with no shift in the approach by the Courts. [122] Having therefore set out the law in relation to the matter of justiciability of the issues before the Court and thereby the jurisdiction of the Court to attend to the issues presented, it must follow that the present appeals turn on whether the State Assembly has jurisdiction to deal with the matters contained in the Ministerial Motion moved under Standing Order 23(1)(a); whether such matters fall within the core or essential business of the State Assembly. It goes without saying that the Ministerial Motion was debated and voted upon by the members of the State Assembly. And, the State Assembly resolved that the plaintiff is "disqualified under Article 17(1)(g) of the Sarawak State Constitution to be a member and has ceased to be a member of the Dewan Undangan Negeri Sarawak forthwith". [123] If the answer is in the affirmative, then following the decisions discussed thus far, the matters raised by the plaintiff are not justiciable. The Court will therefore, not interfere and will instead, abide by the doctrine of parliamentary privileges. B. Disqualification [124] The terms and content of the Ministerial Motion have already been set out. It is irrefutable that the Motion pertains to the disqualification and thereby the qualification of the plaintiff as member of the Sarawak State Assembly. The provisions of qualification and disqualification of a member of the State Assembly are to be found in Articles 16 and 17 of the Sarawak State Constitution. [125] In this regard, the learned Judge found that the plaintiff's disqualification as duly elected member of the State Assembly for the State Constituency of Pujat (N74) by the $ 1^{\mathrm{st}} $ defendant pursuant to the Ministerial Motion dated 12.5.2017 moved by the $ 2^{\mathrm{nd}} $ defendant and adopted by the State Assembly and/or the $ 1^{\mathrm{st}} $ defendant to be unconstitutional, in violation of Article 118 of the Federal Constitution, and is therefore null and void and of no effect. This decision was made on the following principal grounds: i. the Ministerial Motion calls into question the election of the plaintiff as the duly elected member as it sought, in actual fact, to remove the plaintiff as a member of the State Assembly by way of disqualification so that a by-election could be held by the Election Commission; ii. there are no provisions in the Federal Constitution and the State Constitution for the State Assembly to decide on matters related to pre-election disqualification; iii. the Federal Constitution does not confer on the House of Representatives or the State Assembly the power to decide elections in dispute but only question relating to the disqualification of members; iv. the State Assembly has no power to hear and adjudicate on matters such as citizenship of sitting members of the State Assembly as it involves legal and constitutional issues; v. that the State Assembly had embarked on a very simplistic argument that because the plaintiff had acquired Australian citizenship he is therefore disqualified following Article 17(1)(g) of the Sarawak State Constitution; nothing was said of the plaintiff's renunciation of the plaintiff's Australian citizenship prior to the State General Elections and the legal effect of the same; vi. the "proper forum to adjudicate where a pre-election violation is alleged and the election result is challenged" and where questions on the citizenship of the plaintiff, whether he had lost his Malaysian citizenship when he acquired Australian citizenship may be adjudicated on is the Election Court as provided under Article 118 of the Federal Constitution; vii. Article 17(1)(g) deals with the qualification of a person whereas Articles 18(2) and 19(1) deal with the cessation of qualification for election as a member; viii. it would be wrong and perverse to interpret Article 17(1)(g) as referring to a post-election disqualification; ix. the plaintiff did not lose his Malaysian citizenship when he acquired Australian citizenship even though Malaysia did not recognize dual citizenship; x. a plain reading of Articles 24 and 27 show that depriving of nationality and acceptance of renunciation requires a formal act of the Malaysian Federal Government; it is not automatic or irrevocable. [126] When interpreting and construing the Federal Constitution, it is important to bear in mind that it is never to be conducted in the same manner as interpreting and construing statutes. This was expressed in Madhuvita Janjara Augustin v Augustin a/l Lourdasamy & 2 Others [2018] 1 MLJ 307: [36] The apex Court has laid down the principles to be applied when interpreting and construing the Federal Constitution, the supreme law of the land. Two of those principles that come immediately to mind were expressed in Dato' Menteri Othman bin Baginda & Anor v Dato' Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29 and Dewan Undangan Negeri Kelantan v Nordin bin Salleh [1992] 1 MLJ 697. In Dato' Menteri Othman bin Baginda, Raja Azlan Shah, Ag. LP (as His Royal Highness then was) said: "In interpreting a constitution two points must be borne in mind. First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. Secondly, a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way - "with less rigidity and more generosity than other statutes" (see Minister of Home Affairs v Fisher). A constitution is sui generis, calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation. As stated in the judgment of Lord Wilberforce in that case: "A constitution is a legal instrument given rise, amongst other things, to individual rights capable of enforcement in a Court of law. Respect must be paid to the language which has been used and to the traditions and usages which have been given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms." The principle of interpreting constitutions "with less rigidity and more generosity" was again applied by the Privy Council in Attorney General of St Christopher, Nevis and Anguilla v Reynolds. [37] This approach was adopted and applied by the Supreme Court in Dewan Undangan Negeri Kelantan v Nordin bin Salleh with Abdul Hamid Omar LP citing again the Privy Council's decision in Minister of Home Affairs v Fisher, that a constitution based on the Westminster model must not be treated as if it were an Act of Parliament and that "a constitution should be construed with less rigidity and more generosity than other statutes and as sui juris, calling for principles of interpretation of its own, suitable to its character but not forgetting that respect must be paid to the language which has been used." The Lord President cited Barwick CJ who, in the decision of the High Court of Australia in Attorney General of the Commonwealth, ex relation McKinley v Commonwealth of Australia (1975) 135 CLR 1, p 17 said: "...the only true guide and the only course which can produce stability in constitutional law is to read the language of the constitution itself, no doubt generously and not pedantically, but as a whole and to find its meaning by legal reasoning." [38] In Dewan Undangan Negeri Kelantan v Nordin bin Salleh, the Supreme Court further shared the view of the Privy Council expressed in Ong Ah Chuan v PP [1981] AC 648. Although that was a decision on the Constitution of the Republic of Singapore, it is nevertheless noteworthy in relation to the approach when interpreting a constitution of a nation, that a "generous interpretation is suitable, avoiding what has been called "the austerity of tabulated legalism". The Supreme Court also adopted the view of the Supreme Court of India in OK Ghosh v EX Joseph [1963] SC 812 that an interpretation rendering the Constitution ineffective and illusory ought to be avoided. [127] Thus, in construing and interpreting the Federal Constitution, the construction must not be austere, rigid or pedantic. Instead, it should be more broad and generous, suitable to the character of the Federal Constitution as the supreme law of the nation although respect of course, must be paid to the language used. [128] This is not to say that the general principles in interpretation are not applicable. A purposive approach [referred to by Lord Simon in Maunsell v Olins [1975] AC 373 as the "common sense approach"] may still have to be considered, the principles of which are well set out in the Federal Court decision of Andrew Lee Siew Ling v United Overseas Bank (M) Sdn Bhd [2013] 1 MLJ 449. At page 458, the Federal Court addressed the proper application of section 17A of the Interpretation Acts- "On the proper application of the provision of the said s 17A of the Interpretation Act we would refer to the case of All Malayan Estates Staff Union v Rajasegaran & Ors [2006] 6 MLJ 97 wherein this court had laid down the principles, inter alia, as follows: In summarizing the principles governing the application of the purposive approach to interpretation, Craies on Legislation (8th Ed), says at p 566:

(1) Legislation is always to be understood first in accordance with its plain meaning.

(2) Where the plain meaning is in doubt the courts will start the process of construction by attempting to discover, from the provisions enacted, the broad purpose of the legislation.

(3) Where a particular reading would advance the purpose identified, and would do no violence to the plain meaning of the provisions enacted, the courts will be prepared to adopt that reading.

(4) Where a particular reading would advance the purpose identified but would strain the plain meaning of the provisions enacted, the result will depend on the context and, in particular, on a balance of the clarity of the purpose identified and the degree of strain on the language.

(5) Where the courts conclude that the underlying purpose of the legislation is insufficiently plain, or cannot be advanced without any unacceptable degree of violence to the language used, they will be obliged, however regretfully in the circumstances of a particular case, to leave to the legislature the task of extending or modifying the legislation." The choice prescribed in s 17A of '... a construction that would promote the purpose or object underlying the Act ... shall be preferred to a construction that would not promote that purpose or object...' can only arise when the meaning of a statutory provision is not plain and is ambiguous. If therefore, the language of a provision is plain and unambiguous s 17A will have no application as the question of another meaning will not arise. Thus, it is only when a provision is capable of bearing two or more meanings can s 17A be resorted to in order to determine the one that will promote the purpose or object of the provision, such an exercise must be undertaken without doing any violence to the plain meaning of the provision. This is a legislative recognition of the purposive approach and is in line with the current trend in statutory interpretation..." [129] When construing any provision, it is the whole instrument or the whole of the relevant part of the instrument that must be examined in order to discern the meaning intended and to give effect to such intention. The purpose being to give effect, as far as it is possible, to all its provisions; "unless there is some clear reason to the contrary, no portion of the fundamental law should be treated as superfluous" - see the Federal Court in Dato Seri IR Hj Mohammad Nizar Jamaluddin v Dato Seri Dr Zambry Abd Kadir; Attorney General (Intervener) [2010] 2 CLJ 925,941, citing in turn Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd [2004] 1 CLJ 701. In other words, the whole and the relevant chapter of the Federal Constitution must be taken into account. [130] Returning then to this seemingly innocuous question of disqualification of the plaintiff which question is intrinsic to the matter of qualification of the plaintiff as a member of the State Assembly, it is necessary to conduct a very careful examination of the terms of Article 17 of the Sarawak State Constitution, not only of itself but together with other provisions in the Federal Constitution, Sarawak State Constitution and any law mentioned in Article 17 itself. In particular, regard must be given to Articles 16, 18 and 19 as these are specific provisions on qualifications of membership, disqualification of membership, tenure of seats of members, and decision as to disqualification. These provisions are set out as follows: Qualifications of members

16. Every citizen of or over the age of twenty-one years who is resident in the State is qualified to be elected as an elected member of the Dewan Undangan Negeri, unless he is disqualified for being such a member by the Federal Constitution or this Constitution or by any such law as is mentioned in Article 17. Disqualifications for membership

17. (1)Subject to the provisions of this Article, a person is disqualified for being elected as an elected member of the Dewan Undangan Negeri if-

(2) (Deleted by Ord. No. 9/1968)

(3) The disqualification of a person under paragraph (d) or paragraph (e) of Clause (1) may be removed by the Yang di-Pertuan Negeri and shall, if not so removed, cease at the end of the period of five years beginning with the date on which the return mentioned in paragraph (d) of that Clause was required to be lodged, or, as the case may be, on the date on which the person convicted as mentioned in paragraph (e) of that Clause was released from custody, or the date on which the fine mentioned in that paragraph was imposed; and a person shall not be disqualified under paragraph (g) of Clause (1) by reason only of anything done by him before he became a citizen.

(4) Notwithstanding anything contained in the foregoing provisions of this Article, where a member of the Dewan Undangan Negeri becomes disqualified from continuing to be a member thereof pursuant to paragraph (e) of Clause (1), or under a law as is referred to in paragraph (f) of Clause (1)-

(ii) convicted of an offence or proved guilty of an act under a law as is referred to in the aforesaid paragraph (f); or

(5) Clause (4) shall not apply for the purpose of nomination or election of any person to the Dewan Undangan Negeri, for which purpose the disqualification shall take effect immediately upon the occurrence of the event referred to in paragraph (e) or (f), as the case may be, of Clause (1).

(6) A person who resigns his membership of the Dewan Undangan Negeri of this State or the Legislative Assembly of any other State, shall, for a period of five years beginning with the date on which his resignation takes effect, be disqualified from being a member of the Dewan Undangan Negeri of this State.

(7) (a) Any person who has voluntarily given an undertaking to the Speaker in writing that he will not resign his membership from the political party for which he stood or to which he belongs when he is elected to the Dewan Undangan Negeri, shall, if he resigns from the political party after being elected, be disqualified in the interest of public integrity and morality from continuing to be a member of the Dewan Undangan Negeri with effect from the date he resigned from the political party.

18. (1) Every elected member of the Dewan Undangan Negeri shall vacate his seat in the Dewan on a dissolution of the Dewan.

(2) An elected member shall also vacate his seat in the Dewan if-

(3) For the purposes of paragraph (c) of Clause (2), "meeting" means any sitting or sittings of the Dewan commencing when the Dewan first meets after being summoned at any time and terminating when the Dewan is adjourned sine die or at the conclusion of a Session.

(4) (Deleted ...) Decision as to disqualification

19. (1)If any question arises whether the Speaker or a member of the Dewan Undangan Negeri has ceased to be qualified for appointment or election as such, the decision of the Dewan shall be taken and shall be final: Provided that this Article shall not be taken to prevent the practice of the Dewan postponing a decision in order to allow for the taking or determination of any proceedings that may affect the decision (including proceedings for the removal of the disqualification).

(2) Where a member of the Dewan Undangan Negeri becomes disqualified under paragraph (e) of Clause (1) of Article 17, or under a law as is referred to in paragraph (f) of Clause (1) of Article 17, the foregoing Clause (1) shall not apply, and he shall cease to be a member of the Dewan Undangan Negeri, and his seat shall become vacant, immediately upon his disqualification taking effect in accordance with Clause (4) of Article 17. [131] As pointed out earlier, in the reading of the above provisions, regard must be given to Articles 47, 48, 49, 50 and 53 of the Federal Constitution, the terms of which run substantially similar to those found in the Sarawak State Constitution as mentioned above. [132] Now, pursuant to Article 16 of the Sarawak State Constitution, there are four fundamental qualifications that every person who wants to be elected member of the State Assembly must have. These fundamentals relate to citizenship, age, residency and the absence of disqualification. [133] Only citizens of the Federation qualify. Next, that citizen must be aged 21 years or over. Third, that 21 year old or over citizen must be resident in the State of Sarawak. Finally, that citizen must not suffer from any of the disqualifications specified in the Federal Constitution, the Sarawak State Constitution or by any law mentioned under Article 17. [134] There is no dispute that the plaintiff meets the age and residency qualifications. It is also undisputed that the plaintiff is a Malaysian citizen. It is further not in dispute that the plaintiff was never deprived of his Malaysian citizenship. As mentioned by the learned Judge, while Malaysia does not recognize dual citizenship, any deprivation of citizenship may only be validly undertaken by the Federal Government pursuant to Articles 24 and 27 of the Federal Constitution, or if it was voluntarily renounced by the plaintiff himself under Article 23 of the Federal Constitution. Until to date, there is no evidence or indication to this effect. On the contrary, there is confirmative evidence that the plaintiff is a Malaysian citizen. Therefore, the issue of the plaintiff losing his Malaysian citizenship as a result of him voluntarily acquiring Australian citizenship or not being a Malaysian citizen, does not arise. [135] That, however, only deals with part of the issue of qualification. From the clear terms of Article 16, the qualifications to be a member of the State Assembly include the absence of any of the disqualifications stipulated in Article 17. In other words, a citizen aged 21 years or over resident in the State of Sarawak may still not be qualified under Article 16 if that citizen suffers any of the disqualifications spelt out under Article 17. Therefore, the matter of qualification necessarily entails the matter of disqualification. This position pertains under both the Sarawak State Constitution and the Federal Constitution - see Article 47 of the Federal Constitution. [136] Article 17(1) provides for seven disqualifications. I agree with the submissions of learned counsel for the plaintiff that these disqualification need to be carefully scrutinized as each operates distinctively, separate from the others. Articles 17(6) and (7) also deal with disqualifications by reason of resignation whether from membership of the State Assembly or from the political party for which the member stood or to which he belonged when elected; these are, however, irrelevant for the present appeals. [137] What is relevant are the seven disqualifications set out in Article 17(1), summarised as follows: i. unsound mind; ii. undischarged bankrupt; iii. holds office of profit other than that of a Native Chief; iv. failing to lodge the requisite return of expenses within the prescribed time and manner; v. conviction of an offence by a Court of law and sentenced to imprisonment for a term of not less than one year or to a fine of not less than two thousand ringgit and has not received a free pardon in respect thereof; vi. disqualified by reason of having been convicted under any law relating to offences in connection with elections to either House of Parliament or to the Dewan Undangan Negeri offence, or having in proceedings relating to such an offence been proved guilty of an act constituting such an offence; or vii. voluntarily acquired citizenship of, or exercised rights of citizenship in, any country outside the Federation or has made a declaration of allegiance to any country outside the Federation. [138] Articles 17(3), (4) and (5) deal with the removal of and the taking effect of certain disqualifications. Save for the position of a person who became a citizen, where it is specifically provided in Article 17(3) that such a person is not disqualified under clause (1)(g) by reason only of anything done by him before he became a citizen, these Articles do not provide for the removal of or the taking effect of the disqualification specified under Article 17(1)(g). Thus, in order to understand the purport and application of Article 17(1)(g), one must refer to the terms themselves. [139] Article 17(1)(g) deals with where a person has voluntarily acquired citizenship of, or exercised rights of citizenship in, any country outside the Federation or has made a declaration of allegiance to any country outside the Federation. I am aware that the learned Judge was not persuaded by the argument that once a Malaysian citizen acquires foreign citizenship, he is "forever disqualified" under Article 17(1)(g) from being a candidate for election or being qualified to be a member of the State Assembly, irrespective of a subsequent renunciation of that foreign citizenship. I am also aware that the learned Judge read Article 17 as necessarily pertaining to pre-election qualifications which may only be adjudicated by the Election Court under Article 118 of the Federal Constitution. His Lordship came to this conclusion after comparing Article 17 with Articles 18 and 19 where the term "person" is used in Article 17 whereas the term "member" is deployed in Articles 18 and 19. [140] With respect, I disagree. I find the reading afforded by the learned Judge, that Article 17 deals with pre-election qualifications whereas Articles 18 and 19 deal with post-election disqualification is not one that is borne out by the terms of these provisions themselves. All these provisions, from Articles 16 to 19, deal with the matter of membership to the State Assembly, from qualification to disqualification, and decisions of the State Assembly as to disqualification and the cessation of qualification, and thereby cessation of membership. There are no other provisions save the same in Articles 16 and 17. In this respect, I find further support from the decision of Mohamed Azmi J in the first of the two Fan Yew Teng cases which were dealt with earlier, where His Lordship, dealing with the similar issue of disqualification under Article 48 of the Federal Constitution, clearly said that Article 48(1) applies to both pre-election and post-election disqualifications. [141] That same reading and construction applies equally to the Sarawak State Constitution. Given that there are no provisions on qualifications and disqualifications after a citizen person is elected member as Articles 18 and 19 do not provide for qualification or disqualification, any issue relating to qualification and disqualification is necessarily resolved by reference to the same clauses of the State Constitution, namely Articles 16 and 17. These qualification provisions must now be read with modifications, and not, with respect to the learned Judge, in the manner and with the distinction drawn along the lines of pre and post-election qualifications. That distinction is not found in Articles 16 and 17, leaving the distinction and thereby the rationale for the decision reached by the learned Judge, tenuous and plainly erroneous. [142] Further, such reading does not bring harmonious construction to the several provisions of the Sarawak State Constitution which are under scrutiny. In fact, the reading and construction by the learned Judge would render the State Assembly not only incompetent but incapable to address a basic and fundamental question of membership of its members; a question which, beyond doubt, must always fall within the essential jurisdiction of any State Assembly to deal with and determine. The construction by the learned Judge would, with respect, leave the State Assembly staffed by members who are not qualified but for some reason, such non-qualification is either not known or addressed until the member concerned has taken his or her seat in the State Assembly. As will be seen, the terms of Articles 16 and 17 or even 18 and 19 do not carry that purport nor are they capable of such construction. [143] Turning then to the specific disqualification in these appeals, it is my respectful view that the use of the word "person" as opposed to "member" by no means mean that such use brings the meaning and intention ascribed by the learned Judge. On its true and proper construction by way of a plain reading of Article 17(1)(g), and giving the provision its natural and ordinary meaning, a Malaysian citizen is unarguably, disqualified and excluded from qualifying where he or she has undertaken either one or more of the three acts mentioned therein. The language in Article 17(1)(g) is couched in the present and active tense, with no reference or qualification as to when or the time when any of the acts mentioned in Clause 1(g) were done or committed. The focus is on whether the disqualification exists, or still exists at the material time the question arose, and that would be when the Ministerial Motion was tabled and deliberated. The former would prevail in the disqualifications under Clauses 1(a), (b) and (c) whereas the latter will apply to the disqualifications in Clauses 1(d), (e) and (f). [144] The disqualification under Clause 1(g) arises where the Malaysian citizen is also a citizen of another country. Article 17(1)(g) itself prescribes how that foreign citizenship may manifest. First, where a person has voluntarily acquired that foreign citizenship, that person is disqualified for membership. Second, where a person has exercised rights of citizenship in a country other than Malaysia, that person too, is disqualified. Third, where a person has made a declaration of allegiance to any country outside Malaysia, this person, like the earlier circumstanced person, is also disqualified. [145] In my view, the disqualification in Article 17(1)(g) is not concerned only with the acquisition of foreign citizenship by a Malaysian citizen, it also disqualifies any Malaysian citizen who has exercised rights consistent with those afforded or enjoyed by citizens of another country. It further disqualifies any Malaysian citizen who has declared allegiance to a foreign country. I can understand the strict and uncompromising terms of Article 17(1)(g); in fact it comes as no surprise. We are dealing with elections and appointments of suitably qualified persons to the august body of the State Assembly, a body which will make far-reaching decisions for the citizens of the Federation and particularly for those who reside in the State of Sarawak. This State Assembly, amongst others, is responsible for the onerous task of enacting laws which will regulate and affect the lives of the residents of the State of Sarawak. Such laws must necessarily be for the well-being, safety and security of these residents. Amongst such members charged with such onerous duty would be the Chief Minister, in the case of Sarawak, who will lead the State Government. [146] The State Assembly and for that matter, Parliament cannot have as its members, those who have voluntarily acquired or exercised rights of citizenship in or to any country except Malaysia, or who have made declarations of allegiance to such other country. The allegiance must be to Malaysia and to Malaysia alone. Where any of her citizens choose to be a member of her Parliament or any of the State Assemblies, the qualification conditions in Clause 1(g) are unequivocal and uncompromising. The rights of citizenship, and the allegiance including a declaration of allegiance must be unquestionable and unqualified. Where her citizen member has committed or done any of the acts mentioned in Clause 1(g), such member is disqualified. [147] The position of a foreigner or the person who is not a citizen, and how such a person is excluded from the operation of Clause 1(g), in my view, drives home the importance and significance of the requirement of unwavering loyalty and allegiance that is required of the citizen member. The learned Judge had questioned the disparity, suggesting a favoured position given to such a newly acclaimed citizen as opposed to the position of an original citizen or a citizen from birth, deriving therein justification for the conclusion reached. [148] With respect, this is erroneous. The terms in Article 17(3) are clear, and it is not the role of the Court to find parity between the two categories of citizens who are deliberately contrasted by the express provisions of the Constitution itself. [149] The strict construction of Article 17(1)(g) is further evident from the oath that each member of the State Assembly is mandatorily required to take under Article 22 of the Sarawak State Constitution, before exercising office or taking his place in the State Assembly: Oaths of Speaker, Deputy Speaker and members

22. The Speaker or the Deputy Speaker shall before exercising the functions of his office take and subscribe before the Yang di-Pertua Negeri the oath set out in Part III of the Schedule and every member of the Dewan Undangan Negeri shall before taking his seat take and subscribe the said oath before the Speaker.

Part III

Oath of Speaker/Deputy Speaker or Member of Dewan Undangan Negeri I, ... , having been elected (or appointed) as a member (or Speaker/Deputy Speaker) of the Dewan Undangan Negeri of the State of Sarawak, do solemnly swear (or affirm) that I will faithfully discharge my duties as such to the best of my ability, that I will bear true faith and allegiance to the State of Sarawak and to the Federation and that I will preserve, protect and defend the Constitution of the State of Sarawak and the Federal Constitution. [emphasis added] [150] In the terms of the oath, each member has sworn or affirmed to preserve, protect and defend the Sarawak State Constitution and the Federal Constitution. Each member has also sworn or affirmed that he will bear true faith and allegiance to the State of Sarawak and to Malaysia. In short, each member has sworn to put the State of Sarawak and the Nation of Malaysia above himself and all else. [151] Where that same person has also made the same declaration of allegiance, and in this regard, I do not believe it has to be a declaration of allegiance in exactly the same terms or even substantially the same terms, Article 17(1)(g) unequivocally disqualifies such a person. For the same reasons, a Malaysian citizen who has voluntarily acquired citizenship or who has exercised rights of citizenship of another country, is disqualified. In the case of the earlier, the voluntariness in the acquisition of foreign citizenship indicates the intent and state of mind of that citizen; that such a citizen has voluntarily opted to be a citizen of a second country. [152] In the present appeal, these are the undisputed facts. On 20.1.2010, the plaintiff voluntarily acquired Australian citizenship. On 4.4.2016, the plaintiff renounced his Australian citizenship. [153] The matter of citizenship in Australia is governed by specific legislation, namely the Australian Citizenship Act 2007 [No.20,2007]. The Preamble to this Act makes very significant acknowledgment of the backdrop, purpose and intent against which the Act is enacted, and it reads as follows: Preamble The Parliament recognizes that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity. The Parliament recognizes that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

44. Any person who-

(ii) ... (v) ... shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. [162] At paragraph 29, Deane J writing this part of the judgment said:

29. Section 44(i)'s whole purpose is to prevent persons with foreign loyalties or obligations from being members of the Australian Parliament. [163] I understand that following this decision where there were several disqualifications, a new review of the whole section has since been instituted on 28.11.2017. [164] Be that as it may, while section 44(i) of the Constitution is not in pari materia with Article 17(1)(g) and there does not appear to be an equivalent of or comparable Article 17(3) in the Australia context, I find that the purpose of section 44(i) is not unlike that of Article 17(1)(g). Article 17(1)(g) seeks to render disqualified any citizen who has foreign loyalties or obligations from being members of the State Assembly. [165] Unlike the High Court of Australia, I am however, not prepared to undertake an exercise of examining whether the plaintiff had taken reasonable steps in respect of that foreign citizenship. There is not only a distinct difference in our provisions with those of Australia but also that the factual matrix are significantly different. That exercise is quite unnecessary in the present facts. [166] In the present appeals, it is a unique case of a Malaysian citizen who has voluntarily acquired citizenship of another country, enjoyed rights of citizenship of such other country and has made a declaration of allegiance to that other country. The question is whether there is present a disqualification under Article 17(1)(g) rendering the citizen plaintiff no longer a qualified person under Article 16 for being a member of the State Assembly. I have already addressed and answered this poser in the earlier parts of this decision. [167] None of the authorities cited in these appeals including the cases considered by the High Court of Australia and the cases from India, deal with the same factual scenario or legal provision as presented in these appeals. None of the cases concern disqualification by reason of foreign citizenship or declaration of allegiance. Nevertheless, the approach of the High Court of Australia in the above decision is instructive and of greater persuasion than the authorities cited from India which actually deal with disqualifications which are remediable. [168] In that decision, the High Court was dealing with a foreign person who had acquired Australian citizenship. Yet, the Court took considerable measures and effort in examining the question of disqualification of such citizens under section 44(i). If I may, and this is just for the sake of making my point clearer, were the plaintiff to stand for elections in Australia, he may be subjected to the same close scrutiny and tests as were undertaken by the High Court in the above decision. It would appear that the Constitution of Australia does not have an equivalent provision to Article 17(3) of the Sarawak State Constitution when dealing with foreign citizens who have acquired Australian citizenship. [169] Finally, with respect, I must say that I am not persuaded by the decisions of the Supreme Court of India. Those cases do not deal with similar factual matrix or even similar legal provisions. In the light of my observations on citizenship, those cases dealing with remediable disqualification by reason of conviction are not, with respect, of persuasive value. [170] In view of the stark absence of provisions for the cessation of disqualification by for example an act of renunciation of the foreign citizenship, I find that it would be inappropriate if not wrong for the Court to read into Article 17(1)(g) such a removal of disqualification or even an exemption or cessation of such disqualification. The presence of express removal or cessation of disqualification in Article 17(3) fortifies our view that the absence of such removal or cessation of disqualification is both deliberate and intended under the Sarawak State Constitution and the Federal Constitution. [171] I am, therefore, of the view that the renunciation of his Australian citizenship on 4.4.2017 has no impact whatsoever on the plaintiff's disqualification; the plaintiff remains disqualified by the plain terms of Article 17(1)(g) when he undertook the matters specified in Article 17(1)(g). What is material is that at the time the State Assembly deliberated on the Ministerial Motion, Article 17(1)(g) was available for its consideration. From the terms of Article 17(1)(g), clearly, it was. [172] This brings me back to the argument on the competence of the State Assembly to consider the matter of disqualification. The learned Judge had concluded that Article 17(1)(g) concerned matters which are pre-election and are consequently not available for decision by the State Assembly. [173] For the reasons already explained above, I must disagree. The provisions of qualification, disqualification and the taking of decision on disqualification are matters which must be read as a whole. The whole purpose of these provisions is to ensure that only qualified persons as defined by Article 16 sit as members of the State Assembly. The Ministerial Motion moved on 12.5.2017, taken and carried in the State Assembly is not a motion challenging the election of the plaintiff as member. It is a motion challenging the qualification of the plaintiff to remain as member; that he ceases to be a member. This is evident from the terms of the Ministerial Motion. [174] Where such a Motion is moved and a decision has been taken, the Court will not examine how the Motion was carried, the debates and deliberations on the Motion etc. Those are matters properly within the internal management and competence of the State Assembly and for which Article 72(1) of the Federal Constitution applies to remind the Court of the doctrine of parliamentary privileges. [175] Parliament and the State Legislative Assembly of Sarawak always has jurisdiction and power to deal with the question of qualification and disqualification of any of its members. That question is necessarily a question concerning membership of the House or the State Assembly. I cannot imagine how an august House such as the State Legislative Assembly of Sarawak, one of the three organs of government can ever be said to have no power or jurisdiction to deal with that vital question of qualification and membership. If that be the case, no State Assembly can ever regulate itself on such an essential matter as the qualification of its members. No knowingly unqualified or disqualified member of such an essential organ of government should sit in the House or the State Assembly without the House or the State Assembly being empowered to deliberate and vote on the issue. The right to sit and be a member of the State Assembly is actually part and parcel of parliamentary privileges. It would be erroneous to acknowledge the principle of parliamentary privileges but not give respect to it by arguing that the Court has jurisdiction to examine that privilege in the manner suggested by the plaintiff. [176] The reading and construction that I have reached does not violate Article 118 of the Federal Constitution which reads as follows: Method of challenging election

118. No election to the House of Representatives or to the Legislative Assembly of a State shall be called in question except by an election petition presented to the High Court having jurisdiction where the election was held. [177] Article 118 deals with the challenge of elections. It does not deal with challenge of membership or qualification of members of either the House of Representatives or the Assemblies of any State. That is entirely within the purview of Article 53 in the case of Parliamentary elections and Article 19 in the case of the Sarawak State Assembly. [178] This becomes clear when we consider the purpose and ambit of the Elections Act 1958, Election Offences Act 1954 and the Regulations made thereunder. [179] The Elections Act 1958 is an Act providing for elections to the Dewan Rakyat and to the Legislative Assemblies of the various States. Section 2 to the Act defines "election" to mean "a Parliamentary election or a State election, as the case may be". The term "State election" means "an election of a member to a Legislative Assembly". [180] Under section 2 of the Election Offences Act 1954, the term "election" "means an election held in accordance with the provisions of ay written law relating to the election of persons to be members of the Dewan Rakyat, a Legislative Assembly or a local authority." The 1954 Act is an Act to "prevent electoral offences and corrupt and illegal practices at elections; to provide for the establishment of enforcement teams and for matters connected therewith; to provide for the appointment of election agents and to control election expenses; and to provide for election petitions." Part VI of the 1954 Act provide for the grounds for avoiding elections while Part VII deal with election petitions. Although an election can be avoided on the ground that a candidate was at the time of the election a person disqualified for election [section 32], it is the election that is called in question and avoided; and that is where the Election Court steps in and for which purpose it is set up. [181] From the terms of the Ministerial Motion, it is quite apparent that the election which returned the plaintiff is not questioned. What is questioned is the qualification(s) of the plaintiff as member of the State Assembly, whether he met the terms in Article 16 read with Article 17(1)(g), and whether he has ceased to qualify. Where he does not, then under Article 19(1), a decision on the qualification or membership may be taken by the State Assembly itself by its own members on its own members. [182] The provisions of the Federal Constitution and the Sarawak State Constitution must be read harmoniously so that all the provisions may, as far as possible, be given their full effect. And, in this regard, it may be appreciated that it is the Election Court which has a more limited and thereby more restricted role to play. Its powers and jurisdiction are as prescribed under the laws enacted as compared to the jurisdiction of the State Assembly. [183] Insofar as the matter of qualification of a member is concerned, Parliament or the State Assembly of Sarawak here, always has jurisdiction and power to deal with the issue or question. I cannot imagine how such an august House such as the State Assembly, can ever be said to be bereft of power or jurisdiction to deal with that question of qualification. If that be the case, no State Assembly can ever regulate itself on such an essential matter as the qualification of its members. Further, no knowingly unqualified or disqualified member of such an essential organ of government should sit in the House or the State Assembly without the House or the State Assembly being empowered to question, deliberate and vote on the question. The right to sit and be a member of the State Assembly is actually part and parcel of parliamentary privileges. [184] As alluded to earlier, Article 17 is not qualified by reference to when the disqualification arose. It simply states a state of condition; that one should not have undertaken any of the acts mentioned therein. Once any of the limitations or restrictions is breached, the disqualification kicks in. It is my further view that it is implicit in Article 17 that the disqualifications apply regardless when they arise so long as the terms are met. It would be wrong to read into Article 17 a condition which is obviously not there. And, if any question arises as to whether the plaintiff has ceased to so qualified, the question is decided not by any Court or tribunal, including an Election Court. The use of the term "any" indicates that the ambit is wide. Where such question arises, Article 19(1), an enabling provision conferring jurisdiction on the State Assembly, has clearly provided in mandatory terms that the decision of the State Assembly "shall be taken". Under the Standing Orders, such decisions are taken through Motions such as the instant Ministerial Motion. Once deliberated and a vote has been taken, that decision is final and both the members and the State Assembly enjoy the parliamentary privilege of not having that decision scrutinized and questioned by any Court of law. [185] I do not see any need to question set alone examine the power or jurisdiction of the State Assembly to make the particular decision here. The Ministerial Motion was properly carried in and by the State Assembly; and the facts here do not present or warrant for an examination in the manner that was done in the decisions of Teng Chang Khim v Bardul Hisham, Teng Chang Khim v Dato Raja Ideris, YAB Dato Zambry Abd Kadir & Ors v YB Sivakumar Varatharaju and Dewan Undangan Negeri Selangor & Ors v Mohd Hafarizam Harun. [186] It is incontrovertible that the Ministerial Motion was debated, deliberated and a vote was taken. The impugned decision is clearly one that was taken well within the walls and jurisdiction of the State Assembly and it is one that the State Assembly was and is entitled to take. [187] I am aware that the Sarawak State Constitution does not have a provision like Article 50(2) of the Federal Constitution. That provision and Article 50(1) reads:

(1) If a member of either House of Parliament becomes disqualified for membership of that House his seat shall become vacant.

(2) If a person disqualified for being a member of the House of Representatives is elected to that House or if a person disqualified for being a member of the Senate is elected or appointed to the Senate or if an election or appointment to either House is contrary to Article 49, the election or appointment shall be void. [188] This provision, whether in the same or like terms, may be found in all the Constitutions of the States in Malaysia except for the respective Constitutions of the States of Sabah and Sarawak. In my opinion, the presence of this provision in the Federal Constitution and other States, or the absence of such a provision in the Sarawak State Constitution, does not alter the conclusions and views expressed above. On their own, the terms of Articles 16 to 19 bear the construction and interpretation already expressed. Article 50(2) does not, in any event, vest on any particular body, be it the Election Court or the House or the State Assembly, by extension, the jurisdiction to deal with the particular infirmity. In my opinion, Article 50(2), like Articles 16 to 19 must be read contextually, dynamically and harmoniously. [189] In my further opinion, Article 50(2) is also not read subject to Article 50(1). Article 50(1) provides for the tenure and vacancy of a seat when a member becomes disqualified; that when that happens, the seat shall become vacant. This provision exists in Article 18(2) and can be seen similarly worded in the Constitutions of the other States. [190] Article 50(2) on the other hand, seeks to deal with another condition, that is, a pre-existing disqualification which was for any number of reasons, not picked up or not dealt with and such a person is nevertheless elected. Article 50(2) states that such election shall be void. In other words, the person remains disqualified. [191] These are two disjunctive provisions dealing with different circumstances. Article 50(2) is also not intended to deal with a situation where a disqualification arises after election and where the returned candidate has been sworn in as member. [192] In my view, this clause confers further jurisdiction on the Election Court to call in question the election to the House or the State Assembly where the returned candidate or elected person, although his or her election may have been challenged, has nevertheless, already taken his seat in the State Assembly. In such case, the election "shall be void" and it is for the Election Court to make such a pronouncement. Such a provision takes on board all the strict time and procedural provisions entailing an election petition, as are provided under the Election Offences Act 1954. [193] This view is supported when we examine the old Article 50(3) which was repealed in 1963 vide Act 25/1963. That old Article 50(3) provided that " (3) If the election of any person would or might be void under Clause (3) his nomination for the election shall be void." [194] To my mind, the absence of such an enabling provision would mean that it is the State Assembly which then deals with the question. The presence of Article 50(2) does not derogate from the fact that it is the Sarawak State Assembly which has jurisdiction to deal with the question of the plaintiff's qualification, or more specifically, the cessation of his qualification, in the manner as set out in the Ministerial Motion. [195] From the facts and for the reasons already discussed above, the State Assembly here is entitled to the protection of parliamentary privilege as provided under Article 72(1) of the Federal Constitution and the protection of Article 19(1) of the Sarawak State Constitution. In the words of Stephen J in Bradlaugh v Gossett, the State Assembly "... has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its wall is concerned; and even if that interpretation be erroneous, the Court has no power to interfere with it, directly or indirectly." Stephen J further added: "Grant, for the purposes of argument, that the resolution of the House and the Parliamentary Oaths Act contradict each other; how can we interfere without violating the principle just referred to? Surely the right of the plaintiff to take the oath in question is "a matter arising concerning the House of Commons", to use the words of Blackstone ... It is part of the course of its own proceedings," to use the words of Coleridge J and is therefore subject to its exclusive jurisdiction." These authorities are so strong and simple that there may be some risk of weakening them in adding to them..." [196] In the view of the writers of latest edition of Erskine May on Parliamentary Practice [23rd Edition], page 46, the fact that an election petition may be presented to challenge an election "in no way supersedes the jurisdiction of the House in determining questions affecting the seats of its own Members... It is my respectful view that the State Assembly clearly has jurisdiction to decide the matters moved in the Ministerial Motion as those matters evidently pertain to qualification, membership and seat of the plaintiff, a member of the State Assembly. [197] I do not see any clear provisions nor can I infer, and I would be extremely slow to do so when reading the Federal Constitution and the Sarawak State Constitution, that the State Assembly is not entitled to or has no jurisdiction to question the qualification and the cessation of any qualification of the plaintiff, just because the disqualification arose before the plaintiff became its member. That question falls squarely within the ambit of "any question" in Article 19(1) which to me, carries connotations and suggestions of its broad and wide purport. [198] Once again, I am reminded of the words of Mohamed Azmi J in Fan Yew Teng, that Article 19 gives the State Assembly the over-riding power to make decisions as to disqualification. I do not find any provision, whether in the Sarawak State Constitution or the Federal Constitution, to suggest that the power to decide on the question of disqualification is given to any other person or entity, including the Election Court. [199] It is my firm view that the question posed in the Ministerial Motion is a question which inextricably and intrinsically concerns membership of the State Assembly. Such a question is well within the mandate, authority, competence and jurisdiction of the State Assembly to question and deliberate, regardless when it arose so long as it falls within the terms of Article 17; falling well within the application of Lim Cho Hock and the two Fan Yew Teng cases, as affirmed by the Federal Court recently in Teng Chang Khim v Badrul Hisham Abdullah. More so, when the plaintiff is seeking to enjoy and continue to enjoy the privileges of membership of the State Assembly. The matters raised in the Ministerial Motion and the impugned decision reached are well and truly internal management matters within the business of the State Assembly, taken not even outside its walls but at one of its regular sittings. Consequently, the impugned decision and the State Assembly as well as its members, enjoy parliamentary privilege rendering the matters therefore, not justiciable. To say otherwise, that the Courts may scrutinize the Ministerial Motion and the impugned decision, leads necessarily to an adverse impact on the essential business of the State Assembly. Conclusion [200] For all the reasons set out above, I find that there are serious misapprehensions of the law and erroneous application of the law to the facts by the learned Judge. I am therefore compelled to exercise the appellate powers of intervention and allow the appeals and set aside the decision of the learned Judge. The appellants' application to strike out the plaintiff's Originating Summons ought to have been allowed. [201] Finally, in the light of the myriad of issues raised in these appeals which I am convinced are all matters of public interest, no costs ought to be allowed; and I so order. Dated: 27 July 2018. (MARY LIM THIAM SUAN) Judge Court of Appeal, Putrajaya Malaysia Counsel/Solicitors Q-01(A)-212-07/2017 For the appellant: Cecil Abraham (Shankar R.P. Asnani & Daniel C.L. Ling with him) Messrs Thomas, Shankar Ram & Co. 1st Floor, Lot 355, Section 50 Jalan Rumbia 93100 Kuching Sarawak For the $ 1^{\mathrm{s t}} $ respondent: Chong Siew Ching (Tan Kee Heng, Wang King Wei & Michael Kong with him) Messrs King Wei & Co. No. 127, Lot 10519 (2nd Floor) Jalan Tun Jugah 93350 Kuching Sarawak For the $ 2^{\mathrm{nd}} $ respondent: George Lo Kuin Fah (Jonathan Tay Zhi Lun with him) Messrs George Lo & Partners Advocates No. 49, 1 $ ^{st} $ Floor, Block F, King's Centre Jalan Simpang Tiga 93350 Kuching Sarawak For the $ 3^{\mathrm{rd}} $ respondent: Datuk Talat Mahmood (Abdul Rashid, Saferi bin Ali & Evy Liana binti Atang with him) State Attorney General Chambers 16th Floor, Wisma Bapa Malaysia Petra Jaya 93502 Kuching Sarawak For the $ 4^{th} $ respondent: Shamsul Bolhassan (Azizan Md Arshad with him) Federal Attorney General's Chambers Tingkat 8, Bangunan Sultan Iskandar Jalan Simpang Tiga 93350 Kuching Sarawak or the appellant: George Lo Kuin Fah (Jonathan Tay Zhi Lun with him) Messrs George Lo & Partners Advocates No.49, 1 $ ^{st} $ Floor, Block F, King's Centre Jalan Simpang Tiga 93350 Kuching Sarawak For the respondent: Chong Siew Ching (Tan Kee Heng, Wang King Wei & Michael Kong with him) Messrs King Wei & Co. No. 127, Lot 10519 (2nd Floor) Jalan Tun Jugah 93350 Kuching Sarawak Q-01(A)-250-07/2017 For the appellant: Datuk Talat Mahmood (Abdul Rashid, Saferi bin Ali & Evy Liana binti Atang with him) State Attorney General's Chambers 16th Floor, Wisma Bapa Malaysia Petra Jaya 93502 Kuching Sarawak For the respondent: Chong Siew Ching (Tan Kee Heng, Wang King Wei & Michael Kong with him) Messrs King Wei & Co. No.127, Lot 10519 $ (2^{nd}$ Floor) Jalan Tun Jugah 93350 Kuching Sarawak