PUTRAJAYA: The Federal Court has dismissed Bersatu’s application for leave to appeal against the Dewan Rakyat Speaker’s refusal to declare vacant four Sabah parliamentary seats won by the party’s former members in the last general election.
In a 2-1 majority ruling, a three-judge panel led by the Chief Judge of Sabah and Sarawak, Justice Azizah Nawawi, who sat with Federal Court judges Justices Nallini Pathmanathan and Collin Lawrence Sequerah, rejected the application.
Justices Nallini and Sequerah formed the majority, while Justice Azizah dissented, Bernama reported.
Delivering the majority decision, Justice Nallini said the case concerned the Speaker’s constitutional powers under the Federal Constitution, which are non-justiciable.
“The court is bound to give consideration to the doctrine of separation of powers and parliamentary privilege.
“As such, the courts do not interfere with nor scrutinise matters where the Speaker is accorded specific powers under the Federal Constitution, unless the Speaker acts outside those powers,” she said.
The judge said that in Bersatu’s case, the Speaker had exercised his powers under Article 49A of the Federal Constitution and that those powers were not merely administrative, noting that the Speaker is not a rubber stamp.
Justice Nallini said it was also undisputed that there was no allegation of mala fides, adding that the court’s position on the Speaker’s powers to determine a casual vacancy is settled law.
She said there was no basis to grant leave, adding that even if leave were granted, there were no realistic prospects of success.
“We note that Article 49A is a recent amendment, but that does not alter the fact that the Federal Court has decided on the issue of what amounts to a casual vacancy,” she said.
In her dissenting judgment, Justice Azizah said Article 49A is an anti-hopping law enacted to prevent MPs from switching political allegiance after being elected and to ensure MPs remain with the party under which they were elected.
She added that Bersatu’s application met the threshold under Section 96 of the Courts of Judicature Act 1964, as it raised novel questions on the interpretation of Article 49A involving issues of general importance and significant public interest.
On April 17, 2023, Bersatu vice-presidents Datuk Seri Dr Ronald Kiandee and Datuk Kpt (Rtd) Muhammad Suhaimi Yahya, who are also party officials, filed a judicial review application naming Speaker Tan Sri Johari Abdul and the four MPs in question – Datuk Armizan Mohd Ali (Papar), Khairul Firdaus Akbar Khan (Batu Sapi), Datuk Jonathan Yasin (Ranau) and Datuk Matbali Musah (Sipitang) – as respondents.
Bersatu sought an order to quash Johari’s decision via a letter dated Jan 16, 2023, which stated that the four MPs had given explanations and that there was no vacancy in their seats based on the interpretation of the Gabungan Rakyat Sabah and Bersatu constitutions.
The party also sought a declaration that the four MPs had ceased to be members of the Dewan Rakyat in accordance with Article 49A of the Federal Constitution, as well as an order for Johari to confirm the four seats as vacant.
On Nov 16, 2023, the High Court dismissed Bersatu’s application for leave to commence judicial review. Its appeal was subsequently dismissed by the Court of Appeal on Aug 4 last year, prompting Bersatu to seek leave to appeal to the Federal Court.
Under the law, litigants seeking to appeal a Court of Appeal decision in a civil matter must first obtain leave from the Federal Court.
At the Federal Court yesterday, Bersatu was represented by lawyers Tan Sri Azhar Azizan Harun, Chetan Jethwani and Tang Jia Yearn, while senior federal counsel Ahmad Hanir Hambaly @ Arwi and federal counsel Imtiyaz Wizni Aufa Othman represented Johari.
A team of lawyers led by Datuk Firoz Hussein Ahmad Jamaluddin represented the four MPs.
