Opposition leader Anwar Ibrahim and four elected representatives today received the nod from the Federal Court to proceed with their appeal to challenge Muhyiddin Yassin’s action in advising the Yang di-Pertuan Agong to suspend Parliament during the emergency period.
A three-member bench led by Federal Court judge Nallini Pathmanathan, in a majority 2-1 decision, allowed the applications by Anwar, Pulai MP Salahuddin Ayub, Sungai Petani MP Johari Abdul, Tebing Tinggi assemblyman Abdul Aziz Bari and Pasir Gudang MP Hassan Abdul Karim for leave to appeal against the Court of Appeal decision.
Anwar and the four elected representatives lost their appeals on Nov 24 last year, when they were dismissed by the Court of Appeal.
A litigant must first obtain leave in order to proceed with an appeal to the Federal Court.
Justices Nallini and Vernon Ong Lam Kiat ruled in favour of the applicants while justice Zabariah Mohd Yusof dissented.
Nallini in her majority decision said she and 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 were matters of public importance and novelty.
“We are also of the view that the applications are not academic. Therefore, we allow the applications,” Nallini said.
Zabariah, in her minority decision, said the provision of Article 150 (6) of the Federal Constitution states that no legislation enacted pursuant to a proclamation of emergency shall be invalid on the grounds of inconsistency with any provision of this constitution.
On April 22 last year, the Kuala Lumpur High Court dismissed Anwar’s application to obtain leave for a judicial review to challenge Muhyiddin’s advice to Yang di-Pertuan Agong Sultan Abdullah Sultan Ahmad Shah to suspend Parliament during the state of emergency.
Then High Court judge Mariana Yahya, who is now a Court of Appeal judge, dismissed Anwar’s application on the grounds that the court had no jurisdiction to hear the judicial review based on Articles 150 (6) and 150 (8) of the Federal Constitution.
Mariana ruled that the advice of the Cabinet and Muhyiddin to 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 Sultan Abdullah to promulgate Section 14 of the Emergency (Essential Powers) Ordinance 2021, which resulted in the suspension of Parliament, was 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 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.