Apex court grants leave to lawmakers to commence judicial review on emergency proclamation

PUTRAJAYA: The Federal Court today granted leave to two lawmakers to commence a judicial review to challenge former prime minister Tan Sri Muhyiddin Yassin's advice to the Yang di-Pertuan Agong to suspend Parliament during the COVID-19 emergency period.

The five-men panel led by Chief Justice Tun Tengku Maimun Tuan Mat allowed the appeals brought by Pasir Gudang MP Hassan Karim and Perak state assemblyman Abdul Aziz Bari.

She said both lawmakers had met the threshold for leave for judicial review.

"We are not answering the questions (of law) at this point and parties are at liberty to canvass the questions at the High Court.

"The orders of the courts below (High Court and Court of Appeal) are set aside. We remit the case back to the High Court for the hearing of the substantive applications," she said.

Tengku Maimun fixed July 31 for the case to be mentioned before High Court Datuk Ahmad Kamal Md Shahid.

On March 11, 2021, the Kuala Lumpur High Court dismissed an application for leave to commence judicial review proceedings brought by Abdul Aziz, then-opposition leader Datuk Seri Anwar Ibrahim and former Pulai Member of Parliament Datuk Seri Salahuddin Ayub and former Sungai Petani Member of Parliament Tan Sri Johari Abdul Ghani.

Hassan's leave bid was dismissed by the Johor Bahru High Court on April 26, 2021.

However, Anwar, now Prime Minister, withdrew his appeal in November last year while Johari, who is now Speaker of Dewan Rakyat, withdrew his appeal in January this year. Salahuddin passed away in July last year.

In today's proceeding, senior federal counsel Liew Horng Bin representing Muhyiddin and the Government of Malaysia objected to the appeals saying that it has been overtaken by events whereby the elected representatives, who were previously members of the opposition in Parliament, are now lawmakers of the present government.

"The appellants, being lawmakers from the government side in Parliament, are not permitted to abdicate their responsibility by subordinating the plenary power of the legislature to judicial exercise," he said.

Liew also requested that Hassan and Abdul Aziz's judicial review be heard together with two other pending cases before the High Court involving the Malaysian Bar and Bersih 2.0, also challenging the emergency proclamation.

Lawyer Datuk Gurdial Singh Nijar did not object to the remitting of the matter to the High Court to proceed with the judicial review.

On May 2, 2022, the Federal Court had, in a majority decision, granted the duo leave to appeal. They had raised two questions of law regarding the validity of decisions made under Article 150 of the Federal Constitution pertaining to the emergency proclamation, as announced by the Yang di-Pertuan Agong which cannot be adjudicated in the courts.

The Court of Appeal dismissed their appeals on Nov 24, 2021.

In their judicial review, the duo sought a court declaration that the decision by the Cabinet, led by Muhyiddin, to advise the then 16th Yang di-Pertuan Agong Al-Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah 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.

-- BERNAMA

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