Anwar, four reps get leave to appeal on Muhyiddin's advice to suspend Parliament

A three-member bench led by Federal Court Judge Datuk Nallini Pathmanathan, in a majority 2-1 decision today, allowed the applications by Anwar, Pulai MP Datuk Seri Salahuddin Ayub, Sungai Petani MP Datuk Johari Abdul, Tebing Tinggi assemblyman Abdul Aziz Bari and Pasir Gudang MP Hassan Abdul Karim to obtain leave to appeal against the Court of Appeal decision.

Anwar and four elected representatives lost their appeals on Nov 24 last year, which were dismissed by the Court of Appeal.

A litigant must first obtain leave in order to proceed with the appeal to the Federal Court.

Justices Nallini and Datuk Vernon Ong Lam Kiat ruled in favour of the applicants while Justice Datuk Zabariah Mohd Yusof dissented.

Justice Nallini in her majority decision, said she and Justice Ong were of the view that leave should be granted under Section 96 (a) and (b) of the Courts of Judicature Act 1964 as these are matters of public importance and novelty.

"We are also of the view that the applications are not academic. Therefore, we allowed the applications with costs in the costs," Nallini said.

Justice Zabariah, in the minority decision, said the provision of Article 150 (6) of the Federal Constitution, stated that no legislation enacted pursuant to a proclamation of emergency shall be invalid on the grounds of inconsistency with any provision of this constitution.

"Parliament has during an emergency power to legislate on any subject and to any event, even in inconsistency with articles of the Constitution, including the provisions for fundamental liberties are involved.

"It is clear and no ambiguity that states that no court shall have jurisdiction to entertain or determine any application question or proceeding in whatever form on any grounds that in the validity," she said and therefore dismissed the application by the applicants.

On April 22 last year, the Kuala Lumpur High Court dismissed Anwar's application to obtain leave to commence a judicial review to challenge Muhyiddin's advice to Yang di-Pertuan Agong Al-Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah to suspend Parliament during the state of emergency.

The then High Court judge Datuk Seri Mariana Yahya (now Court of Appeal judge) dismissed Anwar's application on grounds that the court had no jurisdiction to hear the judicial review based on Articles 150 (6) and 150 (8) of the Federal Constitution.

Justice Mariana ruled that the advice of the Cabinet and Muhyiddin to Al-Sultan Abdullah to promulgate the Emergency Ordinance was not amenable to judicial review.

Anwar, who is Port Dickson MP, filed the application seeking leave to initiate a judicial review on Jan 25 last year, naming Muhyiddin and the government as respondents in his application.

Anwar is seeking, among others, a court declaration that the decision by the Cabinet, led by Muhyiddin, to advise Al-Sultan Abdullah to promulgate Section 14 of the Emergency (Essential Powers) Ordinance 2021, which had resulted in the suspension of Parliament, is unconstitutional, unlawful, has no effect and is ultra vires.

On March 11 last year, the Kuala Lumpur High Court dismissed the applications for leave for judicial review brought by Salahuddin, Johari and Abdul Aziz on a similar issue while Hassan's leave bid was dismissed by the Johor Bahru High Court on April 26, last year.

They had also named Muhyiddin and the government as respondents in their applications.