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)

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IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CIVIL APPEAL NO. Q-01(A) - 212 - 07/2017

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(2) If a person disqualified for being a member of the House of Representative 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" [11] Even so, whilst a similar provision may appear in other state constitutions in Malaysia, such a provision is nowhere to be found in the Sarawak Constitution. Even if it was so found, it would not support the proposition put forward by the appellants. In my view, Article 50 of the FC must apply to a post-election disqualification because of the operative words "if a member ... becomes disqualified" (emphasis added). Article 50(2) FC would then accordingly apply to make that election void. Any other interpretation would lead to a conflict with Article 118 FC as alluded to earlier. [12] Now, this pre-election and post-election dichotomy is not new. It was recognised in Fan Yew Teng v Setia Usaha Dewan Raa'yat & Ors [1975] 2 MLJ 40 ("Fan Yew Teng") where Mohd Azmi J (as he then was) made the following observations (at p 41): "Before going into the merits of the conflicting arguments, it is necessary to appreciate that article 48(1) applies to both pre-election and as well as to post-election disqualification. In short, any person who comes within one of the sub-clauses (a) to (f) of this article, will not be fit to be a candidate for membership of the Dewan Ra'ayat or be an appointee of the Dewan Negara; and further, if a sitting Member of Parliament incurs any of the disqualification mentioned in the aforesaid sub-clauses, and no question arises as to this disqualification, he will be disqualified. Secondly, it is clearly obvious that articles 50(1) and 53, as opposed to article 48(1), apply only to post-election disqualification, i.e. disqualification arising after election of a person to the House of Representatives or appointment to the Senate. Thirdly, it is also essential to bear in mind that, unlike the constitution of some countries with parliamentary system of government, our Constitution does not confer on the House of Representatives the power to decide elections in disputes, but only questions relating to the disqualification of members. In the case of an election to the House of Representatives, the question of pre-election disqualification including the question of an election on the ground of disqualification of a candidate is given to the High Court under article 118, and if the disqualification is established, the election shall be void under article 50(2)." [13] This decision in Fan Yew Teng has stood the test of time. And I fully agree with the observations of Mohd Azmi J in the passage earlier cited. I should add that the Indian courts have also recognised this dichotomy in several cases, the notable one being the Supreme Court decision in Election Commission India v Saka Venkata Subba Rao [1953] 4 SCR 1144. The Court there appreciated that Articles 190(3) and 190(2) of the Constitution of India, which resemble very closely our own provisions in the Federal Constitution, applied only to disqualifications to which a member of a House of the Legislature of a State becomes subject after he is elected as such. [14] It would therefore appear that both the Federal Constitution and the Sarawak Constitution have made a distinction between the jurisdiction of the Election Judge after the election process as emphatically set out in Article 118 FC and the jurisdiction of Parliament and the State Legislative Assembly after such member is duly elected. [15] It is also plain that the Dewan in this case had the authority to decide only on post-election disqualification on matters which arose after a member had already been elected to the Dewan. That this must be so may be due primarily to the fact that the Dewan may be ill-equipped to deal with pre-election disqualification issues as such matters are better dealt with by the Election Judge as provided under Article 118 FC read with s. 32(e) of the Election Offences Act 1954. [16] As noted by the learned High Court Judge, matters relating to citizenship involve serious legal and constitutional issues. In the present case, the defeated candidate, Datuk Hii King Chong, had taken this very issue presented in these appeals to the Election Court. The Election Judge, however, upheld a preliminary objection by the respondent here and struck out the election petition. The proceedings here, as rightly noted by the learned Judge, and leaving aside the question of jurisdiction, seem very much like the proverbial second bite of the cherry. [17] Finally, the appellants also raised what appeared at first sight to be compelling arguments on the issue of justiciability. It was forcefully contended that the Ministerial Motion on 12 May 2017 in the Dewan in respect of the disqualification of the respondent was a matter within the jurisdiction of the Dewan and was therefore non-justiciable as provided by Article 72(1) of the Federal Constitution which reads: "The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court." [18] This issue of justiciability, which the appellants contend was central to these appeals, was dealt with by the Federal Court in the recent case of Teng Chang Khim v Badrul Hisham Abdullah and Suruhanjava Pilihanraya Malaysia [2017] 1 LNS 468 ("Teng Chang Khim"). The case of Teng Chang Khim concerned the decision of the Speaker of the Dewan Undangan Negeri of Selangor in declaring vacant a seat because of a state assemblyman's absence from the Dewan for six (6) months without the Speaker's leave. [19] After a thorough analysis of the privileges and powers of Parliament and State Legislative Assemblies, the Federal Court held at paragraph 23: "Thus, there can be no doubt that the business of Parliament and 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." [20] In concluding, the Federal Court held at paragraph 51: "In conclusion, we are of the view that in the present case, the Speaker was acting within the limits of the power given to him under Article 69 of the Selangor Constitution when he declared the N46 Pelabuhan Klang Constituency seat vacant. Even though the declaration was made outside the SLA proceedings, it was inevitably connected with the essential business of the SLA, made within the parameters set out by Article 69 of the Selangor Constitution, and was made to regulate the internal affairs of the SLA. Consequently, we rule that the Speaker's act is non-justiciable and the Speaker is entitled to the protection of parliamentary privilege enjoyed by the SLA as provided for under Article 72(1) of the Federal Constitution." [21] Reverting to the instant appeals, the learned Judge in the High Court was conscious of the importance of the issue of non-justiciability as he considered it to be central to the case of the appellants. He did not, however, have the benefit of the decision in Tenq Chanq Khim as it was only delivered after the High Court had handed down its decision on 17 June 2017. [22] Be that as it may, the Federal Court in Teng Chang Khim had also considered the earlier Federal Court decisions of YAB Dato' Dr Zambry Abdul 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 (also considered by the learned Judge in the instant case) and came to a finding that these two cases were distinguishable in that in both cases "the respective Legislative Assemblies had exceeded its jurisdictions as provided under the Constitution of each state hence there was room for judicial interference" (at para 50). [23] It can therefore be surmised that although the business of Parliament and State Legislative Assemblies are immune from judicial interference as provided by Art 72(1) of the FC, the Courts will have jurisdiction to intervene if Parliament or the State legislative Assemblies act outside of or exceed its powers as provided under the Federal or State Constitutions. [24] There is nothing novel about this legal proposition as it stems from principles consonant with a constitutional democracy; the most important one being that no one, including the government, is above the law. Less relevant to the present appeals, although no less important, is the principle that no public authority can have absolute or unfettered discretion in carrying out its functions. [25] Applied to the present context, the jurisdiction and powers of Parliament and the State Assemblies are circumscribed by the Federal Constitution and the relevant State Constitutions and if any such purported exercise of its power exceeds the powers so provided, the Courts will have jurisdiction to strike down such decisions. [26] With that being the state of the relevant law in relation to the issue of justiciability as provided under the Federal Constitution, it must follow that the present appeals turn on the question of whether the Sarawak State Legislative Assembly had exceeded its jurisdiction in disqualifying the respondent. To put it simply, if it had exceeded its jurisdiction, the Assembly is not entitled to the protection of parliamentary privilege as provided by Art 72(1) of the FC and the protection of Art 19 of the Sarawak Constitution. If it has not exceeded its jurisdiction, then the court has no jurisdiction to interfere with the decisions of the Assembly. In short, the Dewan must act within the law. [27] In the event, and for the reasons provided, the Dewan had exceeded its powers and had no authority to disqualify the respondent as it did through the Ministerial Motion dated 12 May 2017. As a consequence, the appeals are dismissed. The order of the High Court is affirmed. Since the appeals concern a matter of public interest, there shall be no order as to costs. Deposits to be refunded. Dated: 13 July 2018 Signed (HARMINDAR SINGH DHALIWAL) Judge Court of Appeal Malaysia Counsel/Solicitors: For the Appellant: Cecil Abraham (Shankar R.P. Asnani & Daniel C.L. Ling with him) (Messrs Thomas, Shankar Ram & Co) For the 1 $ ^{st} $ Respondent: Chong Siew Ching (Tan Kee Heng, Wang King Wei & Michael Kong with him) (Messrs King Wei & Co) For the $ 2^{\mathrm{nd}} $ Respondent: George Lo Kuin Fah (Jonathan Tay Zhi Lun with him) (Messrs George Lo & Partners Advocates) For the 3rd Respondent: Datuk Talat Mahmood (Abdul Rashid, Saferi bin Ali & Evy Liana binti Atang with him) State Attorney General Chambers For the 4th Respondent: Shamsul Bolhassan (Azizan Md Arshad with him) Federal Attorney General Chambers For the Appellant: George Lo Kuin Fah (Jonathan Tay Zhi Lun with him) (Messrs George Lo & Partners Advocates) For the Respondent: Chong Siew Ching (Tan Kee Heng, Wang King Wei & Michael Kong with him) (Messrs King Wei & Co) For the Appellant: Datuk Talat Mahmood (Abdul Rashid, Saferi bin Ali & Evy Liana binti Atang with him) State Attorney General Chambers For the Respondent: Chong Siew Ching (Tan Kee Heng, Wang King Wei & Michael Kong with him) (Messrs King Wei & Co)