PUTRAJAYA (Oct 12): A three-member Court of Appeal bench on Wednesday (Oct 12) dismissed the appeal by Bersih 2.0, a group of private citizens and non-governmental organisations, incumbent Hang Tuah Jaya Member of Parliament Datuk Seri Shamsul Iskandar Mohd Akin, and Senator Mohd Yusmadi Mohd Yusoff to refer constitutional questions regarding the 2020 emergency proclamation directly to the Federal Court.
Datuk Has Zanah Mehat, who led the bench, said there was no appealable error by the High Court in dismissing the referral of questions by Bersih 2.0, which was supported by the two MPs.
“On the substantive [main appeal], the bench rules there was no appealable error by the High Court. We dismiss the appeal with no order as to costs.
“The decision by the High Court is affirmed,” she said.
Sitting with her were Court of Appeal judges Datuk Che Mohd Ruzima Ghazali and Datuk Ahmad Zaidi Ibrahim.
Bersih 2.0 and the two MPs were appealing against High Court judge Datuk Ahmad Kamal Md Shahid’s decision last May 18 not to refer the questions posed by Bersih under Section 84 of the Courts of Judicature Act to the Federal Court.
Bersih was represented by Edmund Bon Tai Soon, Jacqueline Albert and New Sin Yew. Surendra Ananth appeared for the two MPs, while senior federal counsel Suzana Atan appeared for the Government. Mohammed Zamri Ibrahim appeared for PAS lawmakers Senator Mohd Apandi Mohamad and incumbent Pasir Mas MP Ahmad Fadhli Shaari, who were opposed to Bersih's application.
The Malaysian Bar, which had also filed referral questions to challenge the emergency proclamation, had filed a separate appeal, which has yet to be heard.
Bersih, along with Anil Noel Netto, Save Rivers Sdn Bhd, Thomas Fann Peng Tong, Zaharom Nain, CIJ Communications Services Sdn Bhd, Suara Inisiatif Sdn Bhd and Yong Yew Wei, had named then prime minister Tan Sri Muhyiddin Yassin and the Government as respondents in the application, where they wanted to post several questions to the apex court for determination, and sought permission from the High Court to do so.
The High Court ruled that it had the jurisdiction to hear the questions posed itself first, and not directly bring the matter 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,” Ahmad Kamal ruled in the May decision.
The Bar, meanwhile, posed 27 questions of law regarding the emergency proclamation, while Bersih is said to have posed similar questions.
Both entities argued that the emergency proclamation violated Articles 4, 8 and Article 121 of the Federal Constitution, as Parliament had no power to enact such legislation.