Rajan Navaratnam…Speaker’s wide discretionary powers are subject to law and the constitution.
MUCH has been written and discussed in the case of the six Bersatu MPs who were allowed to keep their seats despite switching support to the ruling unity coalition.
The debate can be put to rest based on a purely legal approach.
Article 49A of the Federal Constitution states that an MP shall cease to be a member of the Dewan Rakyat and his seat shall become vacant if the MP resigns or ceases to be a member of his political party.
However, the issue of cessation will not arise if a representative is expelled from his party. It is pertinent to note that pursuant to Article 49A (1), the representative’s seat shall only become vacant if the speaker of the House establishes that there is a casual vacancy.
In this regard, Article 49A (3) states that when the speaker receives written notification from any member of the House of Representatives on the occurrence of a casual vacancy, the speaker is then constitutionally required to first determine and establish whether a casual vacancy has in fact occurred and this is done by carrying out the necessary checks and due diligence.
In other words, just because the speaker receives a written notification of a casual vacancy from a member of this house, he is not compelled to declare a casual vacancy.
The declaration of a casual vacancy is not self-activated by virtue of receipt of a written notification. The speaker is vested with discretion in determining whether a vacancy has arisen.
Whether the speaker’s decision is justiciable will depend on whether the speaker had exercised his discretion within the confines of the constitution.
Hence, so long as he has acted with the legal and constitutional powers accorded to him, the courts will not question or interfere with that decision. To the contrary, any act or decision that displaces the constitution is justiciable.
It appears that it may be unconstitutional for a political party to compel its members to adhere to the party’s instructions and directives concerning a member who discharges his duties and responsibilities as a representative of the House and whether failure to adhere to the party’s ultimatum can result in the cessation of membership.
The then Supreme Court, in the case of Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor (1992) held that any imposition restricting a member from exercising his right as a representative contravenes Article 10(1) of the Federal Constitution, which includes freedom of speech, expression and association, and therefore his acts do not fall within the ambit of disqualification or cessation.
It is therefore questionable whether a party’s constitution can define the meaning and ambit of cessation if it contravenes a guaranteed right under the Federal Constitution.
There is also the Federal Court case of Datuk Ong Kee Hui v Sinyium Anak Mutit (1983) where the apex court said a representative of the people is free to act in accordance with his independent judgement, and any act depriving a representative of his independence is deplored by the law and violates public policy.
This article has appeared in the scoop com.
Editor: Datuk Seri Rajan Navaratnam is a prominent lawyer and reader of Scoop
