Only Speaker can determine casual vacancy in Dewan Rakyat, says lawyer

Dewan Rakyat Speaker Johari Abdul must decide between the diverse positions taken by six rebel Bersatu MPs and their party as to whether casual vacancies arise in their seats, says lawyer Bastian Pius Vendargon. (Bernama pic)

PETALING JAYA: The right and duty to determine whether a casual vacancy has arisen in the Dewan Rakyat rests solely on its speaker, and only his decision matters, a constitutional lawyer said.

Bastian Pius Vendargon said a political party’s role is limited to notifying the speaker that a member has resigned or ceased to be its member.

“The decision to determine if a vacancy has arisen, however, is in the hands of the speaker. If yes, the speaker has to notify the Election Commission to hold a by-election,” he told FMT.

Vendargon was commenting after former Dewan Rakyat speaker Azhar Azizan Harun claimed that a sitting speaker has no right to dispute a party’s interpretation of its constitution.

Bastian Pius Vendargon.

Appearing on the talk show titled “Bersama Wan Saiful” earlier this week, Azhar said that a party leadership’s interpretation of its constitution is final and cannot be contested in court.

Azhar was discussing the membership status of six opposition MPs who declared their support for Prime Minister Anwar Ibrahim. Bersatu said the rebel six ceased to be party members following a recent amendment to its constitution.

Azhar told the show’s host, Bersatu MP Wan Saiful Wan Jan, that a provision in the Societies Act 1966 prevents the party’s interpretation of its constitution from being challenged in the courts.

“If that is the case with the courts, with all due respect, it should be the same for the speaker too,” he said.

Section 18C of the Societies Act 1966, added in the aftermath of a power tussle within Umno in 1987, was intended to deprive the courts of any jurisdiction in the affairs of political parties.

Vendargon said Bersatu is likely to contend that the six MPs’ had ceased to be members of the party in accordance with Article 49A(1)(a)(ii) of the Federal Constitution, triggering a casual vacancy under the anti-hopping law.

“However, the six are likely to take the position that they were expelled by Bersatu,” he said, adding that a vacancy would not arise in such a scenario.

“This is where the ambiguity and the two diverse positions of the MPs and Bersatu arise,” he said, adding that it would fall on Johari to decide whether a casual vacancy has arisen.

Vendargon said Johari is not bound by a similar decision made by the Kelantan state assembly speaker recently.

On Wednesday, state speaker Amar Abdullah announced that the Nenggiri state seat had fallen vacant after Bersatu notified him that incumbent Azizi Abu Naim had ceased to be a party member.

Firoz Hussein Ahmad Jamaluddin.

Lawyer Firoz Hussein Ahmad Jamaluddin said Johari would be obliged to inquire into the matter and construe it in its entirety according to law, without regard to the party’s own interpretation of its constitution.

“There is a Federal Court ruling that one cannot mount a legal challenge when the speaker’s decision is closely linked to the business of the house,” he said.

Firoz said the speaker must apply the anti-hopping law in accordance with the Federal Constitution, which is the supreme law of the land and takes precedence over a political party’s constitution.

Last year, the High Court rejected Bersatu’s attempt to vacate four parliamentary seats in Sabah won by its former members in the 2022 general election.

Justice Amarjeet Singh refused the party leave to initiate judicial review proceedings, saying the courts did not have the power to review Johari’s refusal to declare the seats vacant.

Bersatu’s appeal is pending in the Court of Appeal.