APEX COURT DISMISSES BERSATU’S LEAVE TO APPEAL AGAINST SPEAKER’S DECISION ON SABAH MP SEATS

PUTRAJAYA, Jan 9 (Bernama) -- The Federal Court today dismissed Bersatu’s application to get leave to appeal the Dewan Rakyat Speaker's refusal to declare as 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 Chief Judge of Sabah and Sarawak Datuk Azizah Nawawi, who sat with Federal Court judges Tan Sri Nallini Pathmanathan and Datuk Collin Lawrence Sequerah, rejected the application. Justices Nallini and Sequerah formed the majority, while Justice Azizah dissented.

Delivering the majority decision, Justice Nallini said the case deals with the Speaker’s constitutional powers under the Federal Constitution, which are non-justiciable.

“The court is bound to give consideration to the doctrine of the separation of powers and Parliamentary privilege. As such, 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,” she said.

The judge said 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 is also not in dispute that there is no allegation of mala fides, adding that the court’s position on the powers of the Speaker to establish a casual vacancy is settled law.

She said there was no basis to grant the leave, adding that even if leave was 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 decision, Justice Azizah said Article 49A is an anti-hopping law enacted to prevent members of Parliament (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 Capt (R) Muhammad Suhaimi Yahya, who are also party officials, filed a judicial review application, naming Speaker Tan Sri Johari Abdul and the four Members of Parliament (MPs) in question, namely 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 the four MPs had given an explanation and confirmed there was no vacancy of their seats based on the interpretation of the Gabungan Rakyat Sabah (GRS) and Bersatu constitutions.

Bersatu had 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. Their 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 today, 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.

-- BERNAMA