Decisions by legislative speakers regarding seat vacancies due to absence are protected by parliamentary privilege and non-justiciable.

Introduction

[1] This is an appeal by the appellant against the decision of the Court of Appeal given on 3 December 2014 which affirmed the decision of the High Court.

[2] The High Court, had on 18 February 2011 allowed the 1st respondent's Originating Summons (OS) and granted a declaration that the appellant had acted ultra vires of arts 69 and 70 of the Selangor State Constitution in declaring the State seat for the N46 Pelabuhan Klang Constituency vacant on the ground that the appellant had no power to do so.

[3] Before the High Court, the 1st respondent was the plaintiff, the appellant was the 1st defendant and the Election Commission was the 2nd defendant. In this judgment, we shall refer to the appellant as "the Speaker", the 1st respondent as "Badrul" and the Election Commission as "SPR".

[4] On 28 July 2016, the Speaker was granted leave to appeal against the decision of the Court of Appeal on the following questions of law:

"(1) Whether a decision of the Speaker of the Selangor Legislative Assembly in declaring vacant a seat because of a State Assemblyman's absence for 6 months without leave of the Speaker pursuant to art 69 of the Selangor Constitution can be challenged in legal proceedings, having regard to constitutional privileges and immunities conferred on the Speaker and the Legislative Assembly "inter alia" under:

(i) Article 75 of the Selangor Constitution;

(ii) Article 77 of the Selangor Constitution;

(iii) Paragraph 2 and 3 of the 1st Schedule of the Selangor Constitution; and

(iv) Article 72 of the Federal Constitution .

(2) If the answer to the first question is in the affirmative, whether the Court of Appeal was correct in law in calculating the 6 months' period specified in art 69 of the Selangor Constitution to commence from the first day of the State Assemblyman's absence from sitting without leave of the Speaker, rather than to commence from the last sitting at which the said State Assemblyman was present."

Background Facts

[5] The relevant background facts of this case are these. Badrul was elected as a member of the Selangor Legislative Assembly (SLA) in the 12th General Election in March 2008 for the N46 Pelabuhan Klang Constituency.

[6] Badrul's last attendance in the SLA's meeting was recorded on 15 July 2010, which was the 4th Sitting of the 2nd Meeting of the 3rd Session.

[7] The 3rd Meeting of the third Session commenced on 8 November 2010. Badrul did not attend any of the six days Sittings of the SLA in November 2010. It was only on 10 December 2010 that the Speaker received a letter from Badrul citing 'traditional medical treatment in Pahang' as the reasons for his absence from the SLA Sittings in November 2010.

[8] The Speaker, by a letter dated 21 December 2010 rejected Badrul's application for leave, as Badrul had failed, amongst others, to provide any cogent reason as to the delay in his application for leave of absence from the SLA Sitting. Moreover, the application for leave was only made after the November Sitting was over.

[9] On 19 January 2011, the Speaker declared the seat for the N46 Pelabuhan Klang Constituency vacant due to Badrul's absence from the SLA Meetings for a period of six months without the leave of the Speaker, pursuant to art 69 of the Selangor Constitution. The reason for the decision was later explained by the Speaker in a press conference and in a statement issued by him.

[10] Thereafter, on 21 January 2011, the Speaker notified SPR of his decision of declari