KUALA LUMPUR (June 19): The Malaysian Bar’s challenge of the emergency promulgation in 2020 by then prime minister Tan Sri Muhyiddin Yassin and the government will be heard at the High Court.

This follows the Federal Court on Wednesday dismissing the six leave questions posed by the Malaysian Bar to the apex court, ruling that they do not satisfy or pass the threshold for the three-member bench to grant leave (permission) for the merits of their application.

Court of Appeal president Tan Sri Abang Iskandar Abang Hashim, who led the bench, said the decision was unanimous as the six questions posed do not pass the threshold of Section 96 of the Courts of Judicature Act (CJA).

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“This follows there is no decision by the courts below on the matter for this apex court to grant leave. Hence, it has not passed the threshold set under Section 96 of the CJA.

“The bench made no order as to costs,” Abang Iskandar said.

He sat with Federal Court judges Datuk Rhodzhariah Bujang and Datuk Nordin Hassan.

With the decision on Wednesday, the 27 questions with regards to the Malaysian Bar’s challenge on the emergency promulgation will be heard and decided by the High Court at another date.

The Bar was represented by counsels Steven Thiru, Abdul Rashid Ismail and Gregory Das while senior federal counsels Rahazlan Affendi Abdul Rahim and Liew Horng Bin appeared for the government and Muhyiddin.

In May 2022, High Court judge Datuk Ahmad Kamal Md Shahid dismissed both applications by the Malaysian Bar and election watchdog Bersih 2.0 to refer the constitutional questions posed, regarding the emergency proclamation, directly to the apex court.

“I am of the considered opinion that the subject matter of this application is not within the exclusive jurisdiction of the Federal Court. The jurisdiction to determine the constitutional questions lies within the High Court.

"Thus, whether the application to refer questions to the Federal Court should be allowed, I would answer in the negative. Based on the aforesaid reason, this application to refer the questions to the Federal Court under Section 84 of the Courts of Judicature Act is hereby dismissed with no order as to costs," Ahmad Kamal then ruled.

The Court of Appeal subsequently upheld the High Court decision on Oct 28, 2023, ruling that it was bound by the decision made by another appellate bench with regards to the Bersih 2.0 case.

Datuk Azizul Azmi Adnan, who wrote the unanimous Court of Appeal decision, said there was no appealable error made by the High Court’s decision in not wanting to refer the 27 questions posed directly to the Federal Court.

“This bench considers ourselves bound by the principle of stare decisis (to stand by things already decided), and are constrained to dismiss the appeal (following the Bersih case).

“This follows that it is not within the exclusive jurisdiction of the Federal Court to answer the suitable questions posed in these questions (as this matter could be decided by the High Court),” Azizul added.

The Malaysian Bar posed 27 questions of law regarding the emergency proclamation, while Bersih is said to have posed similar questions. 

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