Eusoff Chin J:

The facts of the case had been agreed to by the parties, and they are:

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 1991 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 Commissions 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.

The enactment mentioned in para. (b) of the agreed facts amended Part One of the constitution of the State of Kelantan (hereinafter referred to as the Kelantan State Constitution) by introducing a new Article XXXIA which states as follows:

XXXIA.Vacation of seat due to resignation, etc., from political party.

(1) 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 eat becomes vacant and the determination of the assembly shall be final and shall not be questioned in any Court on any ground whatsoever.

Although the State Legislative Assembly, Kelantan passed the enactment on 25 April 1991, Article XXXIA was made to have restrospective effect to 19 November 1990.

The plaintiffs have sought a number of orders, but both parties agreed that the main prayer should be first heard and determined by the Court since the other prayers are for consequential orders. The main prayer is for an order declaring that Article XXXIA of the Kelantan State Constitution is invalid, null and void as it is ultra vires the provisions of Article 19(1)(c) of the Federal Constitution.

Encik Zaki Tun Azmi, the learned Counsel for the two plaintiffs submitted that the plaintiffs are not contending that the State Legislative Assembly of Kelantan had no power to make that law (Article XXXIA) but that Article XXXIA is inconsistent with the provisions of Article 10(1)(c) of the Federal Constitution, and because of that, Article XXXIA of the Kelantan State Constitution is void under Article 4(1) of the Federal Constitution.

Article 4(1) of the Federal Constitution states:

4.Supreme law of Federation.

(1) 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.

Encik Zainur Zakaria, the learned Counsel for the defendants and Encik Zaki informed me that they would be citing as authorities the decisions of the Courts in India since Article 10 of the Federal Constitution and Article 19 of the Constitution of India contained provisions relating to rights of citizens to form associations. For ease of reference I quote both the relevant provisions here:

Federal Constitution Constitution of Malaysia of India

Article 10(1) Subject to 19(1) All citizens shall

Clauses (2), (3) and (4): have the right:

Freedom of (a) every citizen has

speech, assembly the right to Protection (a) to Freedom of speech

and freedom of of certain and expression;

association speech and rights regarding

expression of speech, etc.

(b) all citizens (b) to assemble peacebly

have the right and without arms;

to assemble

peaceably and

without ar