PUTRAJAYA (Aug 4): The Court of Appeal (COA) has unanimously dismissed Parti Pribumi Bersatu Malaysia’s appeal against the High Court’s decision to not grant it permission to challenge Dewan Rakyat Speaker Tan Sri Johari Abdul's refusal to vacate the seats of four Sabah Members of Parliament who had left the party.
The COA ruled on Monday that the Speaker of the Dewan Rakyat is immune from such challenges by virtue of Article 63(1) of the Federal Constitution.
In the ruling, the three-judge bench, led by Datuk Che Mohd Ruzima Ghazali, said that the High Court’s decision to dismiss Bersatu’s judicial review application was not incorrect as the court was bound by the Federal Court’s ruling that it had no jurisdiction to question the decision of the Dewan Rakyat Speaker.
“Based on the Federal Court’s decision, we are of the view that the Speaker’s (Dewan Rakyat Speaker) action is immune from challenge by virtue of Article 63(1) of the Federal Constitution. Therefore, we find that the High Court judge was not plainly wrong in his decision to dismiss the leave application for a judicial review,” Che Ruzima said.
Article 63(1) of the Federal Constitution addresses the privileges of Parliament, specifically stating that the validity of any proceedings in either House of Parliament shall not be questioned in any court. This means that courts cannot review or interfere with the internal proceedings of Parliament.
The COA panel, which also included Datuk Azizul Azmi Adnan and newly-elevated judge Dr Shahnaz Sulaiman, surmised that they found no merit in the appeal and dismissed it with no order as to cost.
Previously, High Court judge Datuk Amarjeet Singh had dismissed the judicial review application by Bersatu vice-president Datuk Seri Dr Ronald Kiandee and the party's organising secretary Datuk Capt (Rtd) Muhammad Suhaimi Yahya against Johari and the four MPs.
The issue before the court centred on the newly constituted Article 49A of the Federal Constitution — the anti-hopping legislation — which was passed during Tan Sri Azhar Azizan Harun’s time as the Speaker. Incidentally, Azhar is the lead counsel for Bersatu in this case.
It basically stipulates that a member who has resigned or who ceases to be a member of a political party after being elected in the Dewan Rakyat shall cease to be a member of that house, and his seat shall become vacant.
The four MPs — Datuk Armizan Mohd Ali (Papar), Khairul Firdaus Akbar Khan (Batu Sapi), Datuk Jonathan Yasin (Ranau), and Datuk Matbali Musah (Sipitang) — had declared their support for Gabungan Rakyat Sabah (GRS), and not Bersatu.
In the appeal on Monday, Bersatu was represented by Azhar, Chethan Jethwani, and Tang Jia Yearn, while senior federal counsel (SFC) Ahmad Hanir Hambali and Imtiyaz Wizni Aufa Othman appeared for Johari. Datuk Firoz Hussein Ahmad Jamaluddin, Wafiy Azman, Woo J Enn, Wardah Yumna Yunus, and Choo Shi Jin appeared for the four MPs.
Before the decision, Azhar had argued that the Speaker’s actions are justiciable (a matter suitable for a court of law to decide), otherwise the Speaker can disqualify any MP or reinstate any MP at his will.
Azhar said that Article 49A of the Federal Constitution is there to protect the will of the voters.
“My submission is that a Speaker’s actions are justiciable; otherwise, we would come to an absurd situation where the Speaker can declare any MP disqualified and not disqualified (in this case) and he is not subject to scrutiny at all — at all! How can that be, when Article 49A is there to protect the will of the voters? That cannot be. That cannot be,” he said.
“It’s our submission that it must be shown that his (Johari’s) decision is constitutional and within his legal powers, otherwise this court can scrutinise his decisions,” Azhar added.
SFC Hanir argued that the Speaker of the Dewan Rakyat is not a rubber stamp — he/she does have powers — but argued that the Speaker doesn’t have blind power.
“There are legal limits. The Speaker has certain powers bestowed upon him. If he goes above his power, then it can be decided by this court,” Hanir said, adding that this is within the Speakers’ powers.
Counsel Firoz further argued that the Speaker has an important constitutional function and that Bersatu cannot be allowed to evade the barrier of non-justiciability by attacking the decision-making process of the Speaker.
He further added that if Bersatu is not happy with the decision of the Speaker, there are remedies to challenge the Speaker in Parliament.
“If they are not happy with decision of the Speaker, it can be challenged by way of a substantive motion made in Parliament — there is a mechanism within Parliament to challenge the decision of the Speaker,” he said.
Bersatu had named Johari and the four MPs in the judicial review application, challenging Johari’s decision not to declare the seats as vacant, following the four MPs’ switch from Bersatu to GRS after the 15th general election in November 2022.
GRS was formally established as an electoral alliance to contest the 2020 Sabah state election, primarily to challenge the Warisan Plus coalition. It was not a registered political party at the time, but an ad hoc alliance made up of several parties, mostly aligned with the federal Perikatan Nasional coalition (Bersatu included) and Barisan Nasional (BN).
After GRS became a registered political coalition in 2022, Bersatu Sabah, led by Datuk Seri Hajiji Noor, later that year announced that it had “left Bersatu (the national party) en masse” to align itself with GRS and the Pakatan Harapan and BN unity government.
Hajiji’s announcement, made on Dec 10, 2022, sparked the issue of the status of the four Sabah Bersatu MPs.
Following that, Bersatu’s Ronald said, in a statement on Dec 29, 2022, that the party had sent a notice to Johari, confirming that “casual vacancies” had occurred for the four seats, in accordance with Article 49A (3) of the Federal Constitution.
Bersatu, through Ronald, argued that it had given notice to the Speaker on the occurrence of casual vacancy of the four seats, following the MPs’ move to GRS.
However, Johari ruled that the four need not vacate their seats, as he ruled GRS as not being classified as “another political party” based on the spirit and essence of Article 49A.
Speaking to The Edge after the hearing on Monday, Armizan, who is now the federal domestic trade and cost of living minister, clarified that the MPs had contested in the elections under GRS's ticket, as direct members of GRS.
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