PUTRAJAYA (Jan 9): The Federal Court on Friday rejected Parti Pribumi Bersatu Malaysia’s (Bersatu) application for leave to appeal against Dewan Rakyat Speaker Tan Sri Johari Abdul’s decision to let four Sabah members of Parliament keep their seats after they withdrew their support for Bersatu following the 15th general election (GE15), in a 2-1 split decision.
Judges Tan Sri Nallini Pathmanathan and Datuk Collin Lawrence Sequerah were the majority, dismissing the leave application, while panel chair Chief Judge of Sabah and Sarawak Datuk Azizah Nawawi dissented.
"The courts do not interfere nor scrutinise matters where the Speaker is accorded specific powers under the Federal Constitution, unless the Speaker acts outside of those powers," Nallini said in delivering the majority decision.
“The courts are not in the position of examining or reviewing the Speaker’s determinations which fall within his constitutional powers,” she said, adding that the merits of the Speaker’s decision were not generally reviewable as in an ordinary judicial review, unless he had clearly acted beyond his constitutional authority.
According to Nallini, Johari had exercised his powers under Article 49A of the Federal Constitution and that it was not disputed that those powers were not merely administrative in nature. She added that there was also no allegation of mala fide (bad faith) against the Speaker.
Article 49A, which was introduced following constitutional amendments passed in April 2022 during the tenure of then Dewan Rakyat Speaker Tan Sri Azhar Azizan Harun, provides that a member of the Dewan Rakyat who resigns or ceases to be a member of the political party under which he was elected shall cease to be a member of the House, resulting in a vacancy.
Azhar was also the lead counsel representing Bersatu in the proceedings.
Although Article 49A was a relatively recent constitutional amendment, Nallini said it did not alter the Federal Court’s established jurisprudence on what constituted a casual vacancy in Parliament. Thus, the panel found that the conditions under Section 96 of the Courts of Judicature Act 1964 had not been met and therefore declined to grant leave.
She further held that any attempt to subject the Speaker’s decision to judicial scrutiny would have to overcome the threshold of justiciability under Articles 63 and 72 of the Federal Constitution, which bar courts from questioning proceedings in Parliament. On the facts of the case, she said that threshold had not been crossed.
“In the circumstances, there is no basis for the grant of leave as the position in law is settled. We are also satisfied that even if leave were granted, there are no realistic prospects of success,” she said.
However, Azizah opined that the questions of law posed satisfied Section 96 of the Courts of Judicature Act and it should be allowed for appeal. She said that Article 49A is of significance to public interest.
End of the case for Bersatu's bid after three years
The legal challenge arose after four Sabah MPs — Datuk Armizan Mohd Ali (Papar), Khairul Firdaus Akbar Khan (Batu Sapi), Datuk Jonathan Yasin (Ranau) and Datuk Matbali Musah (Sipitang) — withdrew their support from Bersatu and aligned themselves with Gabungan Rakyat Sabah following the GE15.
Armizan is currently the minister of domestic trade and living costs, while Khairul Firdaus serves as the deputy minister of human resources.
The dispute stemmed from Bersatu’s contention that the four MPs’ withdrawal of support triggered the anti-party-hopping provision under Article 49A.
Bersatu vice-president Datuk Seri Dr Ronald Kiandee and the party’s organising secretary Datuk Capt (Rtd) Muhammad Suhaimi Yahya filed a judicial review application in April 2023, naming Johari and the four MPs as respondents.
They sought to quash a letter issued by the Speaker on Jan 16, 2023 stating that there was no casual vacancy, and sought declarations that the four MPs had ceased to be members of the Dewan Rakyat under Article 49A, thereby requiring the seats to be declared vacant.
Aside from Azhar, Bersatu was also represented by Chethan Jethwani during Friday's proceedings. Meanwhile, senior federal counsel Ahmad Hanir Hambali @ Arwi and federal counsel Imtiyaz Wizni Aufa Othman appeared for Johari. Datuk Firoz Hussein Ahmad Jamaluddin and Mohd Wafiy Azman appeared for the four MPs.
The High Court had earlier dismissed Bersatu’s judicial review application on Nov 16, 2023, ruling that it lacked jurisdiction to review the Speaker’s decision, which it held fell within the internal proceedings of Parliament and was therefore non-justiciable. Simultaneously, the Court of Appeal unanimously upheld that decision on Aug 4, dismissing Bersatu’s appeal with no order as to costs.