Abdul Hamid Omar LP:

In this appeal, the dominant question of law which calls for determination is: whether Article XXXIA of Part One of the Constitution of the State of Kelantan (the Kelantan Constitution) to the extent that it provides that a member of the Legislative Assembly who is a member of a political party, shall cease to be a member of the Legislative Assembly if he resigns or for any reason whatsoever ceases to be a member of such political party, is inconsistent with sub-clause (1)(c) of Article 10 of the Federal Constitution which enunciates the right to freedom of association and, if so, to that extent invalid and therefore ineffective by virtue of sub-clause (1) of Article 4 of the Federal Constitution?

In the High Court at Kuala Lumpur, Eusoff Chin J (as he then was) answered the first part of the question in the affirmative and proceeded to hold that it was void under Article 4(1) of the Federal Constitution to the extent where it imposes a restriction in the exercise of the fundamental right of a member of the Kelantan State Legislative Assembly to resign his membership of a political party or for any other reason whatsoever ceases to be a member of such political party. The appeal is against that decision.

The constitutional problem posed emerged from the following facts as to which the parties to the appeal were and are both in the Court below and here in complete agreement. For brevity and convenience, those facts as set out in the judgment of the learned trial Judge are reproduced hereunder as follows:

a) The plaintiffs were elected to the Dewan Undangan Negeri Kelantan during the General Elections held on 21 October 1990 and subsequently sworn in as members.

b) On 25 April 1991 the first defendant passed the Enakmen Undang-Undang Perlembagaan Tubuh Kerajaan Kelantan (Bahagian Pertama) (Pindaan) 1991.

c) On 3 July l991 the first defendant passed a resolution pursuant to the impugned legislation that the first and second plaintiffs had ceased to be members of the Dewan Undangan Negeri Kelantan and declared the seats for the constituencies of Sungai Pinang and Limbongan vacant.

d) By reason of the vacancies, the Election Commission of Malaysia took steps to hold by-elections in the aforesaid constituencies, with the dates of nominations of candidates fixed for 12 August 1991 and the by-elections held and completed on 26 August 1991.

e) In the by-elections aforesaid, the plaintiffs stood for election as candidates of the Barisan Nasional but lost.

It would be more convenient if we referred to the two appellants as the first and the second plaintiffs and the two respondents as the first and the second defendants. The Suruhanjaya Pilihanraya, Malaysia, the third defendant, has not appealed and so is not a party to this appeal.

To put matters in their proper perspective, it is necessary to reproduce Article XXXIA of the Kelantan Constitution sub-clause (1) of Article 4 and sub-clauses (l)(c) and (2)(c) of Article 10 of the Federal Constitution. They say this:

XXXIA.(l) If any member of the Legislative Assembly who is a member of a political party resigns or is expelled from, or for any reasons whatsoever ceases to be a member of such political party, he shall cease to be a member of the Legislative and his seat shall become vacant.

(2) For the purpose of Clause (1) the Legislative Assembly shall determine whether a seat has become vacant or as to when a seat becomes vacant and the determination of the Assembly shall be final and shall not be questioned in any Court on any ground whatsoever.

Article 4. (l) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

Article l0. (1) Subject to Clause (2), (3) and (4)-

(a) every citizen has the right to freedom of speech and expression;

(b) all citizens have the right to assemble peaceably and without arms;

(c) all citizens have