JANUARY 1 — In the case of Mohd Azizi bin Abu Naim v Tan Sri Dato’ Haji Mahiaddin bin Md Yasin (in his capacity as the President of Malaysian United Indigenous Party (Bersatu) & Ors, the Plaintiff, a former member of Parti Pribumi Bersatu Malaysia (Bersatu) and the elected representative for N.43 Nenggiri, Kelantan, challenged his alleged loss of membership in Bersatu, the declaration of a casual vacancy of his seat, and the by-election conducted by the Election Commission (EC).
The Defendants, who were Bersatu’s President and Secretary-General, Speaker of Kelantan State Legislative Assembly (SLA) and the EC, applied to strike out the Plaintiff’s action under Order 18 Rule 19(1)(a), (b), and (d) of the Rules of Court 2012 (ROC).
The first primary issue before the High Court was whether the Plaintiff’s action had disclosed a reasonable cause of action against the Defendants.
Upon reviewing the Plaintiff’s action, which was by way of Originating Summons supported by affidavits, the learned High Court judge found that the Plaintiff’s challenge to his membership status in Bersatu had raised arguable legal and factual issues. These include:
(a) whether the retrospective application of Bersatu’s constitutional amendments was lawful under the Federal Constitution;
(b) whether the Speaker’s declaration of vacancy of N.43 Nenggiri was made ultra vires given the factual disputes surrounding the Plaintiff’s membership status; and
(c) whether the Plaintiff’s fundamental rights under Articles 5, 8, and 10 of the Federal Constitution were violated.
Bersatu’s President and Secretary-General contended that the Plaintiff’s expulsion from Bersatu fell squarely within Section 18C of the Societies Act 1966, rendering the matter non-justiciable.
However, the Plaintiff argued that his removal resulted from unconstitutional retrospective amendments to Bersatu’s Constitution.
Justice Roz Mawar Rozain ruled as follows:
“This Court finds that the matter is not entirely non-justiciable because it raises a constitutional challenge rather than a mere political party dispute. In Mohd Ezam Mohd Noor v. Ketua Polis Negara [2002] 1 MLJ 321, the High Court held that courts may intervene where an internal party decision violates constitutional rights.
“The Plaintiff contends that his removal violated the Federal Constitution, particularly regarding the retrospective application of party rules, and thus requires judicial scrutiny. To that extent, this Court finds that the Plaintiff has pleaded a cause of action that cannot be struck out summarily at this juncture.”
The Plaintiff contended that he was constructively dismissed from Bersatu and did not voluntarily resign. Bersatu’s President and Secretary-General, in reply, contended that the Plaintiff ceased to be a member automatically upon non-compliance with the party’s directives.
Article 31A of the Kelantan State Constitution provides that a casual vacancy occurs when a member of the SLA ceases to be part of the political party under whose ticket he was elected.
The Speaker relied on the above provision to declare the Plaintiff’s seat (N.43 Nenggiri) vacant.
On the above contentions, the learned judge ruled as follows:
“In Indira Gandhi v. Pengarah Jabatan Agama Islam Perak & Ors and Other Appeals [2018] 1 MLJ 545, the Federal Court held that a person whose constitutional rights are directly affected must be afforded the right to be heard, even if an administrative authority believes the decision is final. Applying this principle, the Plaintiff [has] locus standi [to commence his action] as he was directly affected by the decision of the Speaker to declare his seat vacant.”
Accordingly, the learned judge ordered that the Plaintiff’s action against Bersatu’s President and Secretary-General, as well as against the Speaker, proceed to trial.
The decision was delivered on February 19, 2025.
Two months later the Plaintiff withdrew his action against Bersatu’s President and Secretary-General, as well as against Speaker of Kelantan SLA. The learned judge accordingly struck out the Plaintiff’s action and ordered the Plaintiff to pay costs of RM50,000 to Bersatu’s President and Secretary-General and RM50,000 to the Speaker.
The Plaintiff’s action could have proceeded for the High Court to determine whether amendments to Bersatu’s Constitution were constitutional, hence allowing the Speaker of Kelantan SLA to declare the seat N.43 Nenggiri vacant under Article 31A of Kelantan State Constitution.
The above informs us that a challenge can be mounted against amendments to constitutions of political parties that violate constitutional rights of party members under Articles 5, 8, and 10 of the Federal Constitution.
It remains to be seen whether there will be such challenges after Perlis SLA Speaker’s flip flop in the last hours of 2025.
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
