Veteran lawyer: Speaker's decision on Sabah 4 can be challenged in court

Questions have arisen about whether it is possible for Bersatu to take legal action against Dewan Rakyat speaker Johari Abdul’s decision which allowed four former Bersatu MPs in Sabah to keep their seats.

This is due to Article 63(1) of the Federal Constitution which states that “the validity of any proceedings in either House or Parliament or any committee thereof shall not be questioned in any court”.

However, veteran lawyer Mohamed Haniff Khatri Abdulla (above) believes that Bersatu will be able to bring the matter to the courts.

This is because of the wording of Article 63(1) as well as the fact that interpretation of the Constitution is ultimately in the hands of the judiciary, he said.

“The question would be that, is the decision of the speaker a proceeding of the House?

“Now, let’s not forget that it was the amendment of the Constitution that brought in Article 49(A), which says that the determining body that decides whether the seat is vacated or not is the speaker. So that is a function put onto the speaker by the Constitution, not within a proceeding of Parliament, in my humble opinion.

“And when (the speaker) makes that decision, it is not final because that would depend on their interpretation of the constitutional provision and the court of law is the only body which has been given the power to interpret the Constitution,” Haniff said when contacted by Malaysiakini yesterday.

That is why, despite Article 63(1), he believes the court will have to decide whether that provision comes into effect in this case.

If it does not, the court will then have to determine whether Johari’s interpretation of the amended version of the Constitution is correct or not.

‘Administrative’ function

Haniff opined that the decision by Johari on whether the four former Bersatu MPs need to vacate their seats or not is more of an “administrative” function, rather than part of a ruling made in Parliament proceedings.

“It is a decision made by the speaker but outside of the Parliament in the strict sense. It is an administrative function and like any other administrative function of any agency or minister, is it not subject to judicial review in the court of law?

“So, similar to that, when the Constitution put the function to the speaker to decide whether it’s vacated or not, that decision must be looked into and can be inspected in court.

“In my opinion, Article 63(1) does not apply. So, I think Bersatu and (Bersatu president) Muhyiddin Yassin can take it to the court of law,” Haniff said.

On Jan 17, Muhyiddin said Bersatu would take legal action against Johari’s decision involving the four former Sabah Bersatu MPs.

Muhyiddin said Johari had erred in his interpretation of the law and the facts surrounding the quartet.

Johari has since said his decision on this matter is final as he had given all the justifications and reasoning for said decision in a letter dated Jan 16 which he sent to Bersatu.

However, Johari added, Bersatu has the right to refer the matter to the courts if they want to.

The four MPs in question are Armizan Mohd Ali (Papar), Khairul Firdaus Akbar Khan (Batu Sapi), Jonathan Yasin (Ranau) and Matbali Musah (Sipitang).

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