KUALA LUMPUR (March 2): The High Court on Thursday (March 2) has dismissed an application by four Parti Pribumi Bersatu Malaysia (Bersatu) assemblymen to impose an injunction on the Penang legislative assembly and its Speaker from tabling a motion scheduled on Monday over the status of their seats, which could be declared vacant.
In his grounds, Judicial Commissioner Azizan Md Arshad said the court must always give recognition to the doctrine of separation of powers.
“The courts have no power to interfere with the internal management of Parliament or any state legislative assembly. This immunity arises from the doctrine of separation of powers between the three principal organs of government, namely the executive, the legislative, and the judiciary.
“If these three branches are left unchecked, there will be a clash that will destroy the doctrine of separation of powers which will affect the freedom of the three to act according to their respective jurisdiction,” he said in his decision to dismiss the Erinford injunction which was delivered via email, sighted by The Edge.
The four — Dr Afif Bahardin (Seberang Jaya), Zulkifli Ibrahim (Sungai Acheh), Khaliq Mehtab Mohd Ishaq (Bertam) and Zolkifly Md Lazim (Telok Bahang) — are involved in a protracted legal battle following Bersatu’s move to leave the then Pakatan Harapan state government coalition in 2020.
Two of the assemblymen, namely Dr Afif and Zulkifli, were previously PKR members who were expelled from the party before joining Bersatu.
The Penang legislative assembly had in 2012 passed an anti-party-hopping law, and the four's actions could result in their seats being declared vacant.
This follows the Federal Court in August recognising the legality of Penang's anti-party-hopping law, after the matter was referred by Azizan to the apex court for ruling.
In December, the Federal Court also dismissed a leave application by the four to appeal.
On Jan 12, their originating summons (OS) against the state assembly and Speaker was dismissed by Azizan, who had cited the legality of the Federal Court decision last August as the grounds.
Hence, the four wanted to apply for an Erinford injunction for the matter to remain status quo pending the hearing at the Court of Appeal of their appeal over the dismissal of their OS.
Azizan, in his Thursday decision, said there is a limit to the power of the court to intervene.
“This court has the power to grant an injunction to prevent any authority from doing something that is against the law. At the same time, this court should also be careful not to exceed the jurisdiction given.
“The plaintiff (the four assemblymen) in this case has sought that this court use its discretion to prevent the duties of another body, namely the state legislative assembly which is also created under the state constitution. Their application is to prevent the jurisdiction of the defendants (the state legislative assembly) who are expressly vested in their exclusive jurisdiction.”
He added the court cannot make any decision that will exceed the jurisdiction of this court.
“Any issue related to the eligibility or disqualification of a member of state assembly who has been elected through a valid election process is under the jurisdiction of the state legislative assembly as stated in the state constitution.
“In this case, it is under Article 13 of the Penang State Constitution. For this case, it involves Article 14A of the state constitution, which is the state legislative assembly to make decisions. It is within the exclusive jurisdiction of the legislative assembly and the Speaker and cannot be interfered with by the courts.
“Even if the courts can intervene, this can only be done and referred to the court after a decision is made by the second defendant (Speaker). In the present case, no decision has been made by the second defendant,” the JC added.
In dismissing the injunction, Azizan made no order as to costs. The four assemblymen were represented by Chethan Jethwani while the legislative assembly and Speaker were represented by Surendra Ananth.