JUDGMENT

Hashim Yeop Sani SCJ:

On 20 May 1986 the Yang Di-Pertua Negeri of the State of Sabah gave his assent to an enactment cited as the Constitution (Amendment) Enactment 1986 which came into force on that date. That constitution amendment amended Article 18 of the Constitution of the State of Sabah, adding a new provision whereby an elected member shall vacate his seat in the Assembly if he resigns or is expelled from, or for any reason whatsoever ceases to be a member of, the political party of which he is a member. The applicant was at time of filing of the application an elected member of the Legislative Assembly of the State for the constituency of Bongawan and was a member of the United Sabah National Organisation (USNO), a duly registered political party in that state. The applicant in his affidavit expressed a fear that disciplinary action might be taken against him by USNO which would result in his expulsion and the consequences which follows. His fear was completely justified for by the time the application came to be heard he was already expelled from USNO. As a result of the expulsion and by virtue of the new Article 18(2)(d) of the Sabah Constitution he was required to vacate his seat and the seat was then declared vacant. The Election Commission then issued a writ to hold a by-election and the by-election will be held on 19 September 1987.

A preliminary objection was raised at the outset of the proceeding for leave. The objection was on the qualification of Encik Shafee Abdullah to appear for the applicant. It was contended by Encik Stephen Foo that s. 8 of the Advocates Ordinance of Sabah (Cap. 2) would apply and since Encik Shafee is not appearing for the government (Federal or State) he is not qualified to appear before the Supreme Court. It is to be noted that the words "to practice in Sabah" are defined in s. 2 of the Ordinance to mean "to perform in Sabah":

(a) any of the functions which in England may be performed by a member of the Bar as such; or

(b) any of the functions which in England may be performed by a solicitor of the Supreme Court of Judicature as such.

The present proceeding is under Article 4(4) of the Federal Constitution before a Judge of the Supreme Court. The seat of the Supreme Court is Kuala Lumpur and the hearing is in Kuala Lumpur. Therefore s. 8 of the Ordinance does not apply and Encik Shafee, a States of Malaya Advocate and solicitor is qualified to appear in the proceeding.

Now we come to the application for leave. The application is under Article 4(4) of the Federal Constitution. Proceedings for declaration under Article 4(4) of the Federal Constitution that a law is invalid on the ground mentioned in Clause 4(3), that is the legislature concerned has no power to enact it, shall not be commenced without leave of the Judge of the Supreme Court. This requirement does not apply to proceedings between Governments (Federal and State) under paras. (a) or (b) of Article 4(3) of the Constitution. See also East Union (M) Sdn. Bhd. v. Government of the State of Johore & Anor. [1980] 2 MLJ 143.

The applicant seeks for the following declarations.

(a) a declaration that the respondents are not empowered to make laws with respect to the matter of disqualification for membership of the Assembly as effected by The Constitution (Amendment) Enactment No. 3 of 1986.

(b) a declaration that The Constitution (Amendment) Enactment No. 3 of 1986 of the State of Sabah thereby effecting an amendment to The Constitution of the State of Sabah by addition of Clause 2(d) to Article 18 thereto is null and void and of no effect by reason of the respondents' incompetence to enact the same.

Although the declarations are not ideally worded or presented it is understood by reading the two declarations together that the applicant is seeking for a specific declaration that that part of the Constitution (Amendment) Enactment No. 3 of 1986 of Sabah carrying the addition of Clause 2(d) of Article 18 of the