Bersatu has turned to the Federal Court in its bid to initiate judicial review proceedings over Dewan Rakyat Speaker Johari Abdul’s refusal to declare the seats of four Sabah MPs vacant for supporting Prime Minister Anwar Ibrahim.
The opposition party, through its solicitors Chetan Jethwani & Company, filed its application for leave to challenge a Court of Appeal ruling dismissing its appeal last month.
Under Section 96 of the Courts of Judicature Act 1964, leave is granted only if there are novel constitutional or legal questions of public importance raised for the first time.
Lawyer Chethan Jethwani said the applicants – party vice-president Ronald Kiandee and its public officer Suhaimi Yahya – premised their application on five legal questions.
They include whether the Dewan Rakyat speaker’s decision to establish a casual vacancy under Article 49A(3) of the Federal Constitution is amenable to judicial review, in light of Articles 63 (1) and 72(1).
The party also wants the apex court to determine whether the use of the word “establish” in Article 49A(3) of the constitution connotes that the role of the speaker is merely administrative.
“We have filed a certificate of urgency for the leave application to be heard as soon as possible,” Chetan told FMT.
On Aug 5, a three-member Court of Appeal bench held that the speaker’s ruling, contained in a letter dated Jan 16, 2023, was immune to judicial review based on Article 63(1) of the constitution.
Justice Ruzima Ghazali, who chaired the appeals court bench, said the High Court was not wrong to dismiss Bersatu’s application to commence judicial review proceedings.
Also on the panel hearing the appeal were Justices Azizul Azmi Adnan and Shahnaz Sulaiman.
In a written judgment delivered two years ago, High Court judge Amarjeet Singh said he was bound by a previous decision of the Federal Court, which ruled that the speaker’s decision as to whether a casual vacancy exists was non-justiciable.
That provision stipulates that the validity of proceedings in the House of Parliament or any of its respective committees shall not be questioned in any court.
As a result, Johari said no vacancy had occurred in the Papar, Batu Sapi, Ranau and Sipitang seats.
The seats are held by Armizan Mohd Ali, Khairul Firdaus Akbar Khan, Jonathan Yasin and Matbali Musah, respectively.
Bersatu claimed that Johari’s decision not to vacate the seats of ex-MPs from the party was “tainted with illegality”.
The four MPs were elected on a Gabungan Rakyat Sabah ticket as direct members of the coalition in the 15th general election (GE15) in 2022, when Bersatu was part of GRS.
However, GRS dropped Bersatu as a coalition member after GE15.
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 this 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 had wanted the High Court to revoke Johari’s decision and order him to declare the four seats vacant.
