Teh Chang Kim (Appealing as Speaker of Selangor State Legislative Assembly v Badrul Hisham bin Abdullah & Anor [2017] 5 MLJ 567

TEH CHANG KIM (APPEALING AS SPEAKER OF SELANGOR STATE LEGISLATIVE ASSEMBLY) v BADRUL HISHAM BIN ABDULLAH & ANOR [2017] 5 MLJ 567

Federal Court (Putrajaya)

Parliamentary Privilege

Facts

1.     The First Respondent, Badrul Hisham bin Abdullah was elected as a member of the Selangor Legislative Assembly (“SLA”) for the N46 Pelabuhan Klang Constituency during the 12th General Election on March 2008.

2.     The First Respondent’s last attendance was during the fourth sitting of the second meeting of the third session of the SLA’s meeting on 15 July 2010.

3.     Further, the First Respondent did not attend any of the six days sittings of the SLA in November 2010 i.e the third meeting of the third session which commenced on 8 November 2010.

4.     On 10 December 2010, the Speaker i.e the Appellant received a letter from the First Respondent, stating that he is doing a traditional medical treatment in Pahang as the reasons for his absence from the SLA sittings in November 2010.

5.     On 21 December 2010, the Appellant by a letter rejected the First Respondent’s application for leave as he failed to provide strong reason as to delay in his application for leave of absence from the SLA sitting.

6.     Later on 19 January 2011, due to the First Respondent’s absence for a period of six months without the Appellant’s leave, the Appellant then declared the seat for n46 Pelabuhan Klang Constituency is vacant.

7.     Pursuant to that, in accordance with Article 70(5) of the Selangor Constitution, the Appellant on 21 January 2011 notified Suruhanjaya Pilihan Raya (“SPR”) of his decision of declaring the seat for N46 Pelabuhan Klang Constituency.

8.     The First Respondent on 24 January 2011 filed an originating summons at the Shah Alam High Court seeking, inter alia:

(a) A declaration that he remained an assemblyman for the N46 Pelabuhan Klang Constituency in the SLA and was entitled to attend and participate in every SLA and carry out his duties and tasks in relation to it;

(b) Further and/or in the alternative, there was no vacancy of the N46 Pelabuhan Klang Constituency seat in the SLA; and

(c)  Further and/or in the alternative, a declaration that the decision of the speaker to declare the vacancy of his seat was ultra vires Article 69 of the Selangor Constitution and/or null and void.

9.     The Shah Alam High Court on 18 February 2011 granted the reliefs sought by the Respondent and the High Court’s decision was upheld by the Court of Appeal.

Issue

1.     Whether the decision on the Speaker in declaring vacant seat because of a State Assemblyman’s absence for six months without leave of the Speaker pursuant to Article 69 of the Selangor Constitution was within the realm of the internal agreement of the SLA and therefore, not amendable to judicial proceedings?

2.     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?

Ratios

1.    The constitutional privilege

(a) The learned counsel for the First Respondent argued that the action carried out by the First Respondent was in exercise of his duty to manage the SLA’s internal affairs and was immune from being challenge in the court.

(b) The learned senior federal counsel (“SFC”) on behalf of the SPR contended that the acts and decision of the Appellant to declare the seat held by the Appellant to be vaated:

(i)   had nothing to do with any proceedings in the SLA;

(ii) was not in respect of anything said or vote taken by the Speaker when taking part in any proceedings in the SLA; and

(iii) had nothing to do with anything published by or under the authority of the SLA.

(c)  The SFC further submitted that the act of the Respondent declaring that the N46 Pelabuhan Klang Constituency seat was vacant during the press conference, cannot be regarded as part of the proceedings of the SLA.

(d) Article 72(1) of the Federal Constitution guarantees that the privilege of the Legislative Assemblies of all states in Malaysia-

“Privilege of Legislative Assembly

72(1) The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any Court”.

(e)  The similar privilege is also provided in the Selangor Constitution under Article 77-

“(2) There shall be freedom of speech and debate or proceedings.

(3) No member shall be liable to any civil or criminal proceedings, arrest, imprisonment, or damages by reason of any matter or thing which he may have brought by petition, bill, resolution, motion or otherwise, or have said before the Assembly or any committee”.

(f)   In the case of Lim Cho Hock v Speaker Perak State Legislative Assembly [1979] 2 MLJ 85 it was held that the court has no jurisdiction to entertain the originating summons filed by the applicant.

(g) This is further affirmed in the case of Fan Yew Teng v Government of Malaysia [1976] 2 MLJ 262 where the court held that the Dewan Rakyat has sole authority over the matters pertaining to members’ disqualification, which was outside of the court’s purview.

(h)  Hence, there can be no doubt that the conduct of the State Legislative Assemblies are immune from the judicial interference.

(i)    However in this recent case, the Appellant’s conduct in declaring the N46 Pelabuhan Klang  Constituency seat vacant, was not made during the proceedings of the SLA and therefore cannot be regarded as part of the proceedings which absolve it from being questioned in the court.

2.     Words or action outside the SLA

(a) A similar question where words or actions took place outside the SLA are protected by parliamentary privilege was encountered by the English Supreme Court in the case R v Chaytor [2010] 3 WLR 1707 where Lord Philips held that-

“…. In considering whether actions outside the House and committees fall within parliamentary proceedings because of their connection to them, 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”.            

(b) Article 69 of the Selangor Constitution provides that-

“Absence of a member

If a member of the Legislative Assembly is without leave of the Speaker absent from every sitting thereof for a period of six months his seat shall be declared vacant by the Speaker”.   

(c) The Article mentioned above provides that a member of the SLA who misses six consecutive meeting without permission may have their seat declared vacant by the Speaker.  However, this Article is silent on whether the Speaker should made the declaration during the proceedings of the SLA.  Additionally, this Article does not impose any obligation on the Speaker to consult members of the legislative assembly before making such declaration.

(d) The Court held that the declaration made by the Appellant was within the ambit of Article 69 of the Selangor Constitution and it was made in the performance of the Appellant’s role as a Speaker.  Thus, the Appellant had acted legally under Article 69 of the Selangor Constitution.

(e) Therefore, the Appellant’s act is not subjected to judicial review and that the Appellant is entitled to the parliamentary privilege protection enjoyed by the SLA under Article 72(1) of the Federal Constitution and paragraphs 2-3 of the Schedule to Article 77 of the Selangor Constitution.

Decision 1.    The Federal Court allowed the Appellant’s appeal and set aside the decisions of the Court of Appeal and the High Court.
Key Take Away

1.      Based on the doctrine of separation of powers between the three principal organs of government, i.e. the executive, the legislature and the judiciary, the courts have no power to interfere with the internal management of Parliament or any State Legislative Assembly.

2.      For the House of Parliament, the powers and privileges relating to the freedom of speech and debate or proceedings are governed by Houses of Parliament (Privileges and Powers) Act 1952 (Act 347).

 

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