Syed Ahmad Idid J:

The Court has listened to both defendants on their application for an order "to stay or dismiss the plaintiff's action" under O. 18 r. 19 of the Rules of the High 1980.

Under the Rules, the Court may order that the pleadings be struck out or amended on the grounds listed from (a) to (d) in O. 18, r. 19(1).

The plaintiff's originating summons claims against the defendants -

(A) a declaration that Article 18(2)(e) of the Constitution of the State of Sabah is invalid, null and void and is of no force and effect in that it is contrary to and ultra vires Articles 8(1) and 10(1)(a),(b) and (c) of the Federal Constitution.

Article 8(1): All persons are equal before the law and entitled to the equal protection of the law.

Article 10(1):

(a) Every citizen has the right to freedom of speech and expression and all citizens have the right, (b) to assemble peaceably and without arms and (c) to form associations.

(B) The plaintiff also asks for a declaration that Article 18(2)(e) is invalid, null and void and is of no force or effect on grounds that it is vague, uncertain, too wide and that it gives the State Legislative Assembly

(i) arbitrary power to expel members and (ii) unfettered and unlimited discretion to determine whether a duly elected member should be expelled or (iii) to determine what constitutes conduct unfit for membership of the Assembly, unbecoming behaviour or an abuse of the mandate given to an elected member by the electorate of his constituency.

(C) Alternatively, the plaintiff asks that in so far as or to the extent that Article 18(2)(e) is contrary to and ultra vires Articles 8(1) and 10(1)(a),(b) or (c), or for the other reasons listed in (B) above (e.g. vague, too wide) that it is thereby invalid, null and void and of no force and effect.

What does the Article, which is said to be offensive or unconstitutional, say?

18(2) An elected or nominated member shall also vacate his seat in the Assembly if -

(e) he is expelled by the Assembly for conduct unfit for membership of the Assembly, for unbecoming behaviour or, in the case of an elected member, for abuse or betrayal of the mandate given to him by the electorate of his constituency.

The learned State Attorney-General of Sabah applies to set aside or strike out the originating summons on these grounds: (a) the plaintiff has no locus standi to commence this action; (b) there is no reasonable cause of action against the defendants; (c) the plaintiff's action being not based on any existing fact or existing dispute is premature, theoretical and academic; (d) the plaintiff had commenced this action prematurely before the impugned provision was brought into force; and (e) it is frivolous, vexatious and an abuse of the process of the Court.

6. Before I decide on the merits of the defendants' application, it may be worthwhile to mention some facts and discuss the plaintiff's claims:

* Plaintiff is a member of the Supreme Council of UMNO, and an elected representative of the State Constituency of Usukan.

* When the Constitution of Sabah was amended with the addition of Article 18(2)(d), this affected him when he resigned from USNO to join UMNO. His seat was vacated.

* The plaintiff then contested a by-election on 11 May 1991 as a representative of the Barisan National and won it. He was then again admitted to the State Legislative Assembly.

* Tun Mustapha then filed an originating summons at the Kota Kinabalu High Court for a declaration that Article 18(2)(d) was invalid, null and void as it is ultra vires Article 10(1) (c) of the Federal Constitution. The defendants' application to strike out that originating summons was dismissed and defendants appealed.The High Court then transmitted the main questions to the Supreme Court by way of a Special Case Stated pursuant to s. 48 (3) of the Courts of Judicature Act 1964 .

* Article 18 (2)(e) of the Constitution of the State of Sabah was amended by the Constitution (Amendment ) Enactment 1992 and was a