Judges Must Safeguard Democracy Zaid Says Over Anti Hopping Law

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Former law minister Zaid Ibrahim urged the courts to uphold the supremacy of the Federal Constitution and review the legality of a decision made by the Dewan Rakyat speaker.
This comes after the Court of Appeal ruled against Bersatu’s attempt to initiate legal action against Dewan Rakyat speaker Johari Abdul and four MPs yesterday.
Zaid said the courts must not abdicate their duty to review the legality of decisions made by the speaker, adding that hiding behind parliamentary privilege would invite abuse.
“To hide behind parliamentary privilege on constitutional matters is to invite abuse, especially when the speaker is a political appointee.
“Surely, the court can take judicial notice of this?” he asked on X yesterday.
On April 7, 2023, Bersatu filed legal action against Johari and four Sabah MPs - Armizan Ali (Papar), Khairul Firdaus Akbar Khan (Batu Sapi), Jonathan Yasin (Ranau), and Matbali Musah (Sipitang).
Bersatu was seeking an order to revoke a decision made by Johari, via a letter dated Jan 16 that year, which stated that the four lawmakers clarified and confirmed there was no vacant parliamentary seat based on the interpretation of the constitution of Gabungan Rakyat Sabah (GRS) and Bersatu.
The party also sought a declaration that the four MPs ceased to be members of the Dewan Rakyat in line with Article 49A of the Federal Constitution, which covers anti-hopping provisions, as well as an order for Johari to confirm the four seats as vacant.
Leave application denied
On Nov 16, 2023, the Kuala Lumpur High Court denied leave for Bersatu to proceed with a judicial review, saying the courts have no power to hear legal challenges involving the decision of the Dewan Rakyat speaker - under the doctrine of “non-justiciability”.
This means certain parliamentary decisions, especially on internal proceedings, are considered outside the court’s review, citing Article 63(1) (on parliamentary proceedings) and relying on precedents in the UK and the principle of parliamentary sovereignty.
Yesterday, the Court of Appeal affirmed the High Court’s decision, ruling that decisions made by Parliament, the House, or its committees are immune from judicial review.
ADSZaid, however, argued that due to the court’s interpretation, the speaker of the House has become a constitutional gatekeeper without accountability, which in turn subverts constitutional supremacy.
Dewan Rakyat speaker Johari AbdulOn judges’ reliance on precedents from the UK and the principle of parliamentary sovereignty, the former Kota Bharu MP said that, unlike the UK, Malaysia has a written Constitution.
“We have a written Constitution. Ours is not a Westminster parliament where Parliament is supreme.
“In Malaysia, the Constitution is supreme under Article 4(1), which reads, ‘This Constitution is the supreme law of the Federation…’,” Zaid said.
Hence, when the speaker decides on matters such as a seat’s vacancy, Zaid said it is no longer a “procedural matter” but a constitutional issue.
‘Anti-hopping law is clear’
As for the anti-hopping law, Zaid said that the legislation clearly details when a seat becomes vacant.
“To claim immunity from judicial review in this context is to say that the speaker’s interpretation of the Constitution is final. That cannot be right in a constitutional democracy.
“If the speaker’s decision is final, then why bother drafting laws for parliamentarians to use or claim that the anti-hopping law is a safeguard against betrayal of the voters’ mandate?” he asked.
Urging Bersatu to file another appeal, Zaid reminded all quarters that the Constitution was not written to be interpreted solely by politicians in office.
“It was written to be enforced by the courts as the ultimate guardians of legality and constitutionality.”
- Mkini

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