When proceedings commenced today, bench chairman Justice Abu Bakar Rais revealed his long acquaintance with Bersatu’s counsel, Azhar Harun, and invited the parties to state if they had objections to him presiding over the case.
Following a short break, lawyer Firoz Hussein Ahmad Jamaluddin, appearing for the MPs, said his clients were uncomfortable with Abu Bakar’s presence on the bench.
Abu Bakar, the Court of Appeal president, then scheduled the application for case management tomorrow to set a new hearing date.
Also on the panel hearing the appeal were Chief Judge of Sabah and Sarawak Azizah Nawawi and Justice Nallini Pathmanathan.
On Aug 5, a three-member appeals court bench ruled that speaker Johari Abdul’s decision, contained in a letter dated Jan 16, 2023, was immune from judicial review.
Justice Ruzima Ghazali, chairing the appeals court bench, said the High Court was correct to dismiss Bersatu’s leave application as Article 63(1) of the Federal Constitution bars courts from questioning the validity of parliamentary proceedings.
In his earlier written judgment, then High Court judge Amarjeet Singh said he was bound by a previous Federal Court ruling which held that the speaker’s determination as to whether a casual vacancy exists cannot be challenged in court.
In his letter, Johari said the four MPs’ support of Prime Minister Anwar Ibrahim’s unity government did not give rise to a casual vacancy of their respective constituencies.
The four MPs are Armizan Mohd Ali (Papar), Khairul Firdaus Akbar Khan (Batu Sapi), Jonathan Yasin (Ranau) and Matbali Musah (Sipitang).
In its suit, Bersatu claimed that Johari’s decision not to vacate the seats was “tainted with illegality”.
The four MPs – then of Bersatu – had run as direct members of the ruling Gabungan Rakyat Sabah (GRS) coalition at the 15th general election (GE15) in 2022, when Bersatu was part of GRS.
GRS dropped Bersatu as a coalition member after GE15.
Bersatu vice-president Ronald Kiandee was previously reported as saying that the party had issued letters of termination to the four MPs on Dec 21, 2022.
He said this was because they had “crossed the floor” by sitting with the government bloc during the Dewan Rakyat sitting on Dec 19, 2022.
Kiandee claimed their actions had triggered Article 49A of the constitution, which states that MPs will lose their seats if they move to another party except if they are sacked by the party or if it is dissolved or deregistered.
Bersatu has filed five legal questions to obtain leave of the apex court to have its appeal heard.