The Speaker’s decision could make or break the government if the issue is not addressed.
KUALA LUMPUR (Aug 29): Former Dewan Rakyat speaker Tan Sri Azhar Azizan Harun has contended that his successor's decision not to declare four Sabah parliamentary seats vacant after the lawmakers had switched sides was filled with illegality and irrationality. It was also unconstitutional, he argued on Tuesday, on behalf of Parti Pribumi Bersatu Malaysia (Bersatu) before the High Court.
Azhar, or better known as Art Harun, said Tan Sri Johari Abdul had exceeded his authority as Parliament Speaker, in assuming the powers of the Bersatu secretary general and determining that there should not be a casual vacancy as the four Bersatu party members had left the party before the 15th general election (GE15), to join Gabungan Rakyat Sabah (GRS).
The central issue before the court centres on the newly constituted Article 49A of the Federal Constitution — the anti-hopping legislation — which was passed during Azhar’s time. It basically stipulates that a member who has resigned or ceases to be a member of a political party after being elected in the Dewan Rakyat shall cease to be a member of that house and his seat shall become vacant.
“Johari as Speaker has appropriated the powers of the Bersatu secretary general in the party constitution that they had ceased to become a member earlier before the 15th general election,” Azhar said.
However, he said Sabah Chief Minister Datuk Seri Hajiji Mohd Noor only announced at a press conference after GE15 that the four — Datuk Armizan Mohd Ali (Papar), Khairul Firdaus Akbar Khan (Batu Sapi), Datuk Jonathan Yasin (Ranau) and Datuk Matbali Musah (Sipitang) — were with GRS and not Bersatu.
“One of the four even told a news portal that he is still a Bersatu member and was not sacked from the party,” Azhar added.
Azhar, who appeared with Chethan Jethwani, said Bersatu is questioning whether Johari has the power to look into Bersatu’s constitution and to interpret Clause 10.2.3 in determining if the individual is a member of the party when Johari is not empowered to do so. He also contends that Johari made a mistake in his interpretation in determining that there was no casual vacancy.
He pointed out that Bersatu, through its vice-president Datuk Seri Ronald Kiandee, had sent a letter to Johari on Dec 29 last year, confirming that “casual vacancies” had occurred in the four seats in accordance with Article 49A(3) of the Federal Constitution.
Article 49A(3) stipulates: “Whenever the Speaker receives a written notice from any member of the House of Representatives on the occurrence of a casual vacancy among the members of the House of Representatives under this Article, the Speaker shall establish that there is such a casual vacancy and notify the Election Commission accordingly within twenty-one days from the date he received the written notice.”
It is worth noting that Armizan is currently a minister in the Prime Minister’s Department, in charge of Sabah, Sarawak Affairs and Special Functions as well as acting minister of domestic trade and costs of living. He was present in Tuesday’s proceedings, as was Ronald.
Azhar argued that the four individuals were Bersatu members who contested under the GRS ticket, and that even though they contested under GRS, they were still Bersatu members before Hajiji’s announcement. Azhar said that following the Sabah CM’s announcement, Article 49A was activated as the lawmakers are considered to be Bersatu members who had left the party, and hence, the situation of ‘casual vacancy’ was triggered.
AGC objects
Ronald and Bersatu executive secretary Captain (Rtd) Datuk Muhammad Suhaimi Yahya are seeking leave for a judicial review of Johari’s decision not to declare the seats vacant.
Attorney General's Chambers (AGC) senior federal counsel Ahmad Hanir Hambaly @ Arwi told judge Datuk Amarjeet Singh Serjit Singh that Johari’s decision is non-justiciable as it falls within the four walls of the legislature under Article 63 of the Federal Constitution.
Ahmad Hanir cited the decision in Datuk Teng Chang Khim vs Badrul Hisham Abdullah, on casual vacancy of the Port Klang state seat which is similar to this case, where the Federal Court ruled that Teng was right in his decision and that the court could not intervene in the decision as the Selangor state constitution stipulates that the Speaker has the power to announce it.
“Similarly here, the Speaker of the Dewan Rakyat as in Article 49A of the FC (Federal Constitution) can determine on the casual vacancy of the seats or otherwise,” he added.
Ahmad Hanir contrasted the decision in V Sivakumar vs Jamaluddin Md Radzi, where in that decision, the Perak constitution stipulates that only the Election Commission can determine the vacancy and not the state legislative assembly speaker.
Counsel Datuk Firoz Hussein Ahmad Jamaluddin, who appeared with Mohd Wafiy Azman for the four MPs who earlier sought leave to submit, agreed with Ahmad Hanir that the court is not empowered to hear the matter.
Firoz Hussein also said Johari had acted intra vires (within powers) in exercising his powers as the Speaker to determine there was no casual vacancy. Firoz Hussein added that the present situation involving the four is similar to Teng’s position that was decided by the Federal Court.
“In exercising his powers under Article 49A, the Speaker (Johari) was regulating the internal affairs of the Parliament,” he said, adding Johari made a decision which is the essential business of the legislature and the issue is considered non-justiciable.
Azhar in reply agreed that while the issue of non-justiciability could be hanging over this application, he argued what the applicants are questioning is Johari’s exercise of power in his capacity as a tribunal, and hence the question of illegality, irrationality and constitutionality can be addressed in the judicial review.
“If these four cross the floor (and their seats are not declared vacant), a new government could be formed,” he warned, adding the Speaker’s decision could make or break the government if the issue is not addressed.
However, he noted that the present government has 138 seats or a two-thirds majority, but that consequence could occur.
Amarjeet said he would deliver his decision on whether to grant leave on Nov 16.