Instead, Judge Wan Ahmad Farid Wan Salleh has opted to hear the suit filed by Syed Iskandar Syed Jaafar al-Mahdzar in November 2020.
Lawyer R Kengadharan, who represented Syed Iskandar, said Wan Ahmad Farid was of the view that the legal question, if referred, would mean the suit would be disposed of in the Federal Court.
“The judge held that if that was the case, the Federal Court would be usurping the power of the High Court where the originating summons was filed,” Kengadharan told FMT.
The verdict was delivered online today.
Kengadharan said the judge was of the view that this could not be the intention of Section 84 of the Courts of Judicature Act when a High Court judge refers questions of law to the apex court.
He said he had asked for two weeks to take instructions from Syed Iskandar.
Wan Ahmad Farid then fixed June 23 for case management.
The question of law Syed Iskandar sought to be answered by the Federal Court is whether an emergency proclamation can be challenged on any grounds, as an ouster clause in Article 150 (8) in the Federal Constitution prevents the judiciary from hearing a complaint related to an Emergency.
The government had last year filed an application to strike out Syed Iskandar’s suit.
In its application, it claims that the lawsuit is “scandalous, frivolous and vexatious” and an abuse of the court process.
On Oct 23, 2020, then prime minister Muhyiddin Yassin advised the King to issue an emergency proclamation under Article 150 after the Cabinet agreed to it at a special meeting.
Two days later, after a special meeting among the Malay rulers, the King decreed that an emergency proclamation was not necessary.
Syed Iskandar filed the suit in the High Court here but later made an application to refer the question of law to the Federal Court.
However, in early January last year, the King accepted Muhyiddin’s advice to declare an Emergency to combat the Covid-19 pandemic. It was lifted in early August.
Federal counsel Sallehuddin Md Ali represented the government while Bastian Pius Vendargon held a watching brief for the Bar Council.