PUTRAJAYA (Sept 28): The Court of Appeal will set a date in November for a decision on an appeal by opposition leader Datuk Seri Anwar Ibrahim to obtain leave for a judicial review to challenge the advice given by former prime minister Tan Sri Muhyiddin Yassin to the Yang di-Pertuan Agong on the emergency ordinance that led to the Parliament's suspension.
The Court of Appeal's three-member bench comprising Justices Datuk Has Zanah Mehat, Datuk Vazeer Alam Mydin Meera and Datuk Ahmad Zaidi Ibrahim, who upon hearing arguments on Tuesday from lawyers on both sides, deferred the decision to a date in November as Justice Has Zanah said there are two similar appeals before the bench which have to be decided together.
The two other appeals in question were brought by Simpang Jeram assemblyman and Pulai MP Datuk Seri Salahuddin Ayub, Gurun assemblyman and Sungai Petani MP Datuk Johari Abdul, Tebing Tinggi assemblyman Abdul Aziz Bari and Pasir Gudang MP Hassan Abdul Karim.
They were appealing against the decisions of two separate High Courts in refusing to grant them leave to commence the judicial review applications.
Initially, the judges had set Thursday (Sept 30) for the decision of the aforementioned two appeals.
However, upon hearing Anwar’s appeal for leave to obtain a judicial review on Tuesday, the judges decided that all three matters will be decided together as they are similar in nature.
“We may not be able to give a decision today. We will have to set a date on the substantive issue. We need to consider the other two appeals on Sept 30, it’s the same subject matter in the two other appeals,” she said after the hearing via Zoom on Tuesday.
“The background facts of all the appeals are more or less the same, we will decide the appeal on the same date,” she said.
They then set an e-review on Wednesday morning with all the lawyers concerned, to set a date in November for their decision.
Earlier, Anwar’s lawyer Ramkarpal Singh argued against the High Court decision in April, where it ruled that the ouster clauses in Articles 150(6) and (8) of the Federal Constitution are valid and precluded judicial review of matters relating to the proclamation of an emergency and resulting ordinances by the King.
These include the advice given to the King to promulgate such ordinances by the prime minister and his Cabinet.
Ramkarpal argued that while the procedures were all met for the emergency ordinance according to the Constitution, it, however, was implemented unreasonably, therefore the law should be scrutinised as the emergency ordinance was unlawful.
“No one is suggesting that we would be disrespecting the articles of the Constitution, the sanctity remains, but they just don’t apply to this case,” he said.
“This is a leave application for judicial review, thus the jurisdiction of the court has not been ousted,” he added.
He said the decision to implement the emergency ordinance was “an abuse of process, an abuse of power and Mala Fide” or done in bad faith by Muhyiddin’s government.
“There was absolutely no need to suspend Parliament, we are still under restriction now but Parliament is running, rules are less strict in the country but Parliament is running,” he said.
“The decision was unreasonable and irrational. This is irrespective if they followed procedure to the letter,” he said.
Senior federal counsel S Narkunavathy, however, argued that as long as it was done according to the Constitution and followed all procedures, it should not be brought to court.
Last April, then High Court judge Datuk Seri Mariana Yahya dismissed Anwar's application for leave to challenge Muhyiddin's advice to the Yang di-Pertuan Agong to suspend Parliament sittings during the state of emergency due to Covid-19.
Anwar, who is Port Dickson MP, filed the judicial review on Jan 26, saying the advice given by the Cabinet headed by Muhyiddin that led to the Parliament's suspension was unconstitutional and had no effect.
The opposition leader also sought a declaration that Section 14 of the Emergency Ordinance was inconsistent with Articles 150(3) and (5) of the Federal Constitution, and was therefore unconstitutional.