Appeal by Bersih, nine others to refer constitutional questions to Federal Court dismissed

A three-member panel comprising Justices Datuk Has Zanah Mehat, Datuk Che Mohd Ruzima Ghazali and Datuk Ahmad Zaidi Ibrahim held that there was no appealable error by the High Court and affirmed its (the High Court's) decision.

On a preliminary objection raised by senior federal counsel Suzana Atan, representing the government and former Prime Minister Tan Sri Muhyiddin Yassin, that the constitutional reference application was not appealable, Justice Has Zanah said the reference application was appealable as it had finally disposed of the rights of the appellants.

The court dismissed the appeals with no order as to costs.

The appellants, besides Bersih 2.0, were its chairman Thomas Fann Peng Tong, six non-governmental organisations (NGO), as well as two PKR politicians, Senator Mohd Yusmadi Mohd Yusoff and incumbent Hang Tuah Jaya Member of Parliament (MP) Datuk Seri Shamsul Iskandar Mohd Akin with no order as to costs.

The NGOs are the Malaysian Academic Movement (Gerak), Aliran, Suara Rakyat Malaysia (Suaram), the Kuala Lumpur and Selangor Chinese Assembly Hall (KLSCAH), Save Rivers, the Center for Independent Journalism (CIJ).

Mohd Yusmadi and Shamsul Iskandar and three PAS lawmakers, namely incumbent Pasir Mas MP Ahmad Fadhli Shaari, Dewan Negara lawmakers Khairil Nizam Khirudin and senator Mohd Apandi Mohamad, were allowed by the High Court on April 1 last year to intervene in the suit filed by Bersih and the NGOs against the Malaysian government and Muhyiddin Yassin.

In their originating summons, they sought a declaration that the Emergency (Essential Powers) Ordinance 2021 is unlawful and unconstitutional, and therefore null and void.

On May 18 this year, High Court judge Datuk Ahmad Kamal Md Shahid dismissed their applications to refer constitutional questions under Section 84 of the Courts of Judicature Act 1964, to the Federal Court.

Bersih had posed seven legal questions concerning the validity of Malaysia's emergency proclamation, which was effective from Jan 12, 2021, until Aug 1, 2021, to curb the spread of the COVID-19 pandemic.

At today's court proceeding, which was conducted online, lawyers Edmund Bon Tai Soon, New Sin Yew and Jacqueline Hannah Albert represented Bersih and the NGOs, while federal counsel Noor Atiqah Zainal Abidin also represented the government and Muhyiddin Yassin.

Lawyer A. Surendra Ananth appeared for Mohd Yusmadi and Shamsul Iskandar , while lawyer Mohammed Zamri Ibrahim acted for the three PAS lawmakers.