In a split decision, Justices Nallini Pathmanathan and Collin Lawrence Sequerah rejected the party’s application for leave to appeal, with Chief Judge of Sabah and Sarawak Azizah Nawawi, who chaired the bench, dissenting.
Nallini said leave to appeal under Section 96 of the Courts of Judicature Act 1964 was not warranted as it was not a case of administrative judicial review but one of constitutional judicial review.
“We are dealing with the constitutional powers of the (Dewan Rakyat) speaker under the Federal Constitution. Those powers are non-justiciable in relation to proceedings in Parliament by reason of Articles 63 and 72 of the Federal Constitution,” she said.
Under the circumstances, the judge said the usually low threshold applied to determine whether leave should be granted for judicial review to commence did not apply.
“The court is bound to give consideration to the doctrine of the separation of powers and parliamentary privilege,” she said.
She also said that the court did not interfere or scrutinise matters where the speaker is accorded specific powers under the constitution, unless the speaker acts outside of those powers.
Nallini said the courts were not in a position to examine or review any determination made by the speaker in accordance with his constitutional powers.
She said that in the present case, the speaker had exercised his powers under Article 49A, which were not merely administrative so as to make him a rubber stamp.
The speaker’s power to establish a casual vacancy is also settled law based on two Federal Court rulings, Nallini added.
“There is therefore no ambiguity in the word ‘establish’ that warrants determination,” she said.
Nallini also ruled that Bersatu failed to cross the justiciability hurdle as it was unable to show that the court was entitled to review the speaker’s powers.
“We are also satisfied that even if leave is granted, there are no realistic prospects of success,” she added.
Announcing her dissenting opinion, Azizah said the questions of law posed were of great importance and public interest.
She said MPs had shown concern during the debate on amendments to Article 49A on the speaker’s power to determine a casual vacancy.
“That determination must be factual and not left to the discretion of the speaker,” she said, adding that the justiciability issue had to be argued in court.
On April 17, 2023, the High Court dismissed the party’s application for leave to appeal in the matter. Its decision was affirmed by the Court of Appeal last year, giving rise to the present proceedings.
Bersatu brought the suit to challenge speaker Johari Abdul’s decision not to declare casual vacancies in the four seats after the MPs expressed support for Prime Minister Anwar Ibrahim’s unity government.
The seats are held by Armizan Mohd Ali (Papar), Khairul Firdaus Akbar Khan (Batu Sapi), Jonathan Yasin (Ranau) and Matbali Musah (Sipitang).
In its suit, Bersatu contended that Johari’s decision not to vacate the seats was “tainted with illegality”.
The four MPs, then of Bersatu, ran 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.
Lawyers Azhar Harun, Chetan Jethwani and Tang Jia Yearn represented Bersatu, while senior federal counsel Ahmad Hanir Hambaly and Imtiyaz Wizni Aufa Othman acted for the speaker.
Counsel Firoz Hussein Ahmad Jamaluddin, Wafiy Azman, Woo J Enn, Wardah Yumna Yunus and Harel Nieryan appeared for the MPs.