Badan Peguam Malaysia v yang Berhormat Perdana Menteri Malaysia, Tan Sri Dato' Haji Mahiaddin Bin Mohd Yasin (08(i)-428-12/2023(W))

AND YANG BERHORMAT PERDANA MENTERI

BIN MOHD YASIN KERAJAAN MALAYSIA … RESPONDENTS [In the matter of the Court of Appeal Malaysia Civil Appeal No. W-01(IM)-405-06/2022] Between Badan Peguam Malaysia … Applicant

And Yang Berhormat Perdana Menteri Malaysia, Tan Sri Dato’ Haji Mahiaddin

Bin Mohd Yasin Kerajaan Malaysia … Respondents [In the matter of the High Court in Malaya at Kuala Lumpur Originating Summons No. WA-24-22-04/2021] Between Badan Peguam Malaysia … Applicant And 22/06/2024 00:36:45 08(i)-428-12/2023(W)

Yang Berhormat Perdana Menteri Malaysia, Tan Sri Dato’ Haji Mahiaddin

Bin Mohd Yasin Kerajaan Malaysia … Respondents

The facts and the antecedent proceedings [1] Malaysian Bar (“the Bar”) in this case applied for leave to appeal under section 96 of the Courts of Judicature Act 1964 (“CJA”) against the decision of the Court of Appeal (“COA”) in affirming the decision of the High Court (“HCT”) that dismissed the Bar’s application for reference of 27 constitutional questions to the Federal Court pursuant to Article 128 of the Federal Constitution (“FC”) and/or section 84 of the CJA. The 1st Respondent is the then Prime Minister of Malaysia, and the 2nd Respondent is the Government of Malaysia (collectively as “the Respondents”). [2] The 27 questions can be broadly divided into 6 major categories dealing with:

Constitutionality of Article 150 of the FC vis-à-vis the basic structure of the FC;

(ii) Constitutionality of Articles 150(6) and (8) of the FC vis-à-vis Articles 4, 5, 8 and 121 of the FC, and the basic structure of the FC;

(iii) Constitutionality of the various provisions in the promulgated Emergency Ordinances vis-à-vis several Articles in the FC;

(iv) The interpretation of Article 150(3) of the FC on the constitutional duty of the Respondents to forthwith advise the Yang di-Pertuan Agong (“YDPA”) to summon a meeting of Parliament for (i) the Proclamation of Emergency; and (ii) the various Emergency Ordinances, to be laid before both Houses of Parliament and for all necessary and appropriate resolutions to be passed;

The interpretation of Article 150(1) read with Article 150 (2B), (3) and (7) of the FC in respect of the power to revoke or annul the Emergency Ordinances;

(vi) The interpretation of Article 40(1) of the FC on the obligation of the YDPA to act on advice in respect of the continuance or revocation of Emergency Ordinances [3] The first three categories (i) to (iii) are questions of constitutionality that are expressly stated to be inconsistent, either to (i) the basic structure of the FC, and/or (ii) the various Articles in the FC. In other words, it was never the case of the Bar that the 27 questions are premised on competency challenge. [4] The HCT dismissed the reference application, essentially on the ground that those questions were not constitutional questions that fell exclusively within the jurisdiction of the Federal Court alone to answer. The challenge of constitutionality as mounted by the Bar on the inconsistency grounds pertained to matters that can be dealt with by the High Court following the decisions of the Federal Court in several cases, including Ah Thian v Government of Malaysia [1976] 2 MLJ 112 (“Ah Thian”); Gin Poh Holdings Sdn Bhd (in voluntary liquidation) v The Government of the State of Penang & Ors [2018] 3 MLJ 417 (“Gin Poh”); Mohd Khairul Azam bin Abdul Aziz v Menteri Pendidikan Malaysia & Anor [2020] 1 MLJ 398 (“Khairul Azam”); and Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2020] 4 MLJ 133 (“Anwar Ibrahim”). [5] On appeal, the COA affirmed the decision of the HCT. One of the main grounds for dismissing the appeal was that the HCT had not committed any appealable error in refusing to refer the questions posed, to the Federal Court. The COA was of the view that on the inconsistency challenge such as the present case, the HCT was seized with the jurisdiction to hear and determine the matter. Notwithstanding, the COA viewed that the HCT “retains a discretion to refer a question to the Federal Court under section 84 of the Courts of Judicature Act 1964 even in circumstances where the matter does not fall within the exclusive original jurisdiction of the Federal Court, but this discretion must be exercised sparingly.” [6] Dissatisfied, the Bar filed leave to appeal. Originally, there were 32 proposed questions of law (“QOL”) as stated in the notice of motion. However, the Bar had revised the QOL to 6 QOL only. One of the 6 revised QOL is directly concerned with the 27 reference questions mentioned above. The 6 revised QOL read:

Whether in a reference under Section 84(1) of the Courts of Judicature Act 1964 read with Article 128(2) of the Federal Constitution, the proposition that only the Federal Court has the jurisdiction to determine a question as to the effect of any provision of the Federal Constitution as held by the Federal Court in Gan Boon Aun v. Public Prosecutor [2016] 6 CLJ 647 applies in view of the later decision of the Federal Court in Dato’ Seri Anwar Ibrahim v. Government of Malaysia & Another [2020] 3 CLJ 593 that held that both the High Court and the Federal Court have the jurisdiction to determine such questions?

(ii) Whether the only matters that are within the jurisdiction of the Federal Court to warrant a reference under Section 84(1) of the Courts of Judicature Act 1964 are matters that relate to questions of legislative competence under Article 4(3), 4(4) and Article 128(1) of the Federal Constitution?

(iii) Whether the matters that warrant determination in an application for reference under Section 84(1) of the Courts of Judicature Act 1964 read with Article 128(2) of the Federal Constitution are limited to the following:

Whether the proposed constitutional questions in the proceedings at the High Court relate to the effect of any provision of the Federal Constitution; and

Whether the determination of the proposed constitutional questions would result in the economical and speedy disposal of the proceedings at the High Court?

(iv) Whether the existence of a difference of views at the Federal Court on the application of a principle of constitutional law or the constitutionality of a principle of law are matters that should be considered in determining an application for reference under Section 84(1) of the Courts of Judicature Act 1964 read with Article 128(2) of the Federal Constitution?

Whether on a true interpretation of Article 128(2) of the Federal Constitution read with Sections 81 and 84(1) of the Courts of Judicature Act 1964, the Federal Court can exercise the jurisdiction of the High Court to decide whether the questions that relate to the effect of the provisions of the Federal Constitution could be determined by the Federal Court, without remitting the matter back to the High Court?

(vi) In the event Question 5 above is answered in the affirmative, whether the following questions that relate to the effect of the provisions of the Federal Constitution should be referred to the Federal Court under Sections 81 and 84(1) of the Courts of Judicature Act 1964 read with Article 128(2) of the Federal Constitution for the Federal Court to determine the said questions: (Questions 1 to 27 in the reference application). The threshold for leave [7] The required threshold for leave to appeal had been settled by the Federal Court in Terengganu Forest Products Sdn Bhd v Cosco

Container Lines Co Ltd & Anor and other applications [2011] 1 MLJ There, the Federal Court accepted as correct, the principles laid down in Datuk Syed Kechik bin Syed Mohamed & Anor v The Board of Trustees of the Sabah Foundation & Ors and another application [1999] 1 MLJ 257. [8] As observed in Terengganu Forest, an applicant, seeking leave to appeal has a heavy burden to discharge in proving the threshold under section 96 of the CJA, a specific provision regulating the conditions of appeal to the Federal Court. There are two situations where leave is required. They must be:

from any judgment or order of the Court of Appeal in respect of any civil cause or matter decided by the High Court in the exercise of its original jurisdiction involving a question of general principle decided for the first time or a question of importance upon which further argument and decision of the Federal Court would be to public advantage, or

from any decision as to the effect of any provision of the Federal Constitution including the validity of any written law relating to any such provision. Our decision [9] We first identify under which limb of section 96 of the CJA that the proposed QOL could pass the required threshold. Limb (b) is, in our view, inapplicable as there is no decision yet made by the courts below on the effect of any provision of the Constitution including the validity of any written law relating to any such provision. [10] As for limb (a), it must be shown to us that the proposed QOL involves a question of general principle decided for the first time or it being a question of importance to public advantage. In this regard, we are satisfied that the law on reference of constitutional questions to the Federal Court is well settled, requiring no further ventilation at the Federal Court. Our reasons are as set out below. Analysis of the leave questions [11] Having analysed the 6 revised QOL, we went on to divide those QOL into three main groups based on the commonality of the provisions of law in issue and the pith and substance points posited in those questions. They are:

QOL 1 to 3 concern the nature and scope of the reference of constitutional question in section 84 of the CJA read together with Article 128(1) and (2); and with Article 4(3) and (4) of the Federal Constitution.

(ii) QOL 4 relates to the alleged differences of views at the Federal Court on the application of a principle of constitutional law or the constitutionality of a principle of law as a factor to be considered in determining the reference application.

(iii) QOL 5 to 6 deal with the jurisdiction and power of the Federal Court in deciding the questions relating to the effect of the provisions of the FC without remitting the matter back to the HCT. Nature and scope of reference to the Federal Court (QOL 1-3) [12] First and foremost, we observed and it needs reiteration that the HCT in this case was aware of what was decided by the Federal Court in Gan Boon Aun v. Public Prosecutor [2016] 6 CLJ 647 (“Gan Boon Aun”) in that only the Federal Court is empowered to determine a question as to the effect of any provision of the Constitution, and that the HCT did not have such power. [13] That said, the HCT acknowledged that the Federal Court had, in the later decisions in Gin Poh, Khairul Azam and Anwar Ibrahim, held that the HCT has the jurisdiction to deal with inconsistency challenges of the constitutional provisions. With that understanding, the HCT refused the Bar’s reference application. [14] Reverting to the issue before us, the Bar seems to suggest that in view of the differences of opinion on reference to the Federal Court, between Gan Boon Aun on the one hand and Anwar Ibrahim on the other, there is the need for the Federal Court to clarify and state the correct position in law. In essence, the Bar is of the view that the nature and scope of the reference to the Federal Court are still vague and ambiguous. The Respondents on the other hand argued that there is no conflict between Gan Boon Aun and Anwar Ibrahim on this matter and that the law relating to reference to Federal Court is well settled by the subsequent decisions of the Federal Court as mentioned above, with the latest decision being that of Anwar Ibrahim. [15] We have examined Gan Boon Aun, Gin Poh, Khairul Azam and Anwar Ibrahim, and we found there is no conflict, either latent or apparent. The Federal Court in Anwar Ibrahim had clarified the law on reference to Federal Court. Anwar Ibrahim did not hold that only the constitutional questions premised on the competency challenge point can be referred to the Federal Court. Nevertheless, Anwar Ibrahim went on to explain that the HCT “should generally and ordinarily determine constitutional questions at first instance, barring those within the original jurisdiction of the Federal Court” as there is no obligation on the part of the HCT, by virtue of the word “may” in section 84 to refer any constitutional question arising before it to the Federal Court. Hence, the reference jurisdiction is not to be exercised automatically or invariably in every case. This understanding is consistent with Gin Poh, Ah Thian and Khairul Azam. In fact, Justice Azahar Mohamed, CJ (Malaya) who penned the grounds of judgment in Khairul Azam, was one of the panel members in Gan Boon Aun. In essence, where there is inconsistency challenge, such as the present case, the HCT has the jurisdiction to decide on such constitutional challenge so premised. [16] As such, when the HCT exercised its discretion by not referring the 27 questions to the Federal Court because it was empowered to decide on them, that reason alone was valid and could find more than ample support from the Federal Court decisions as cited and discussed above. The HCT in such a circumstance cannot then be said to have not exercised its discretion judicially or that it had not properly addressed its mind on the applicable test not to refer the constitutional questions to the Federal Court, when it had, in fact addressed its mind sufficiently to many authorities as cited in its judgment. [17] In short, we are of the view that QOL 1 to 3 failed to fulfil the necessary threshold for the grant of leave, in that, the meaning, nature and scope of reference to Federal Court is well established and clarified in the authorities cited above. The Bar had failed to show us that there existed a gap in the law that would necessitate the grant of leave for questions relating to the meaning and application of section 84 of the CJA read together with Article 128(1) and (2), and Article 4(3) and (4) of the Federal Constitution. [18] As was held in Terengganu Forest, “the purpose of section 96 is not to allow for correction of ordinary errors committed by the lower courts as would in an appeal as of right, particularly where the relevant laws are well settled.” [19] Furthermore, Anwar Ibrahim case is a recent decision of this Court and we do not see any cogent reason to depart from what to our mind is a sound and well-reasoned judgment, and deserving of due deference. In Dalip Bhagwan Singh v PP [1997] 4 CLJ 645, this Court ruled that: “If the House of Lords, and by analogy, the Federal Court, departs from its previous decision when it is right to do so in the circumstances set out above, then also by necessary implication, its decision represents the present state of the law. When two decisions of the Federal Court conflict, on a point of law, the later decision therefore, for the same reasons, prevails over the earlier decision.” Difference of views as a determining factor in reference application (QOL 4) [20] At the risk of repetition, the proposed QOL 4 asks: “Whether the existence of a difference of views at the Federal Court on the application of a principle of constitutional law or the constitutionality of a principle of law are matters that should be considered in determining an application for reference under Section 84(1) of the Courts of Judicature Act 1964 read with Article 128(2) of the Federal Constitution?” [21] This proposed QOL revolves around the requisite factor to be considered in an application for reference. And the stated requisite proposed factor in the QOL is the existence of a difference of views at the Federal Court on the application of a principle of constitutional law or the constitutionality of a principle of law. [22] What had captured our attention when we first looked at the proposed QOL 4, had been the phrase “a principle of constitutional law or the constitutionality of a principle of law”. Without the benefit of the parties’ submissions, the QOL is rather vague and ambiguous. The QOL seems to suggest that the existence of a difference of views on the matters stated therein should be considered in determining the reference application. [23] The Bar, in its submissions referred to two matters – the application of the doctrine of basic structure; and the ouster clause. These matters are what the Bar submitted to be the factors to be considered in determining an application for reference as this apex court seems to have differing views on their application as well as their constitutionality. The Respondents on the other hand argued that Anwar Ibrahim has ruled on the matters governing the reference application. [24] The majority in Anwar Ibrahim whilst acknowledging that section 84 of the CJA does not expressly indicate the factors to be considered in determining whether a case is suitable to be referred to and determined by the Federal Court, it nevertheless ruled on the principles to be considered on the referral jurisdiction of the Federal Court. It held that: “To summarise, the following principles should be borne in mind when considering the referral jurisdiction of the Federal Court:

the referral jurisdiction in art 128(2) of the FC and s 84 of the CJA forms part of the constitutional framework, and must be construed in its light;

the Federal Court is the court of last resort in respect of constitutional issues, except those falling within its narrowly construed original jurisdiction;

s 84 does not fundamentally change the nature of the Federal Court into a constitutional court. It is not a carte blanche for all constitutional questions to be referred to and determined by the Federal Court in every case. The High Court should normally determine constitutional questions themselves at first instance; and

where a special case is referred to the Federal Court under s 84, the Federal Court is not obliged to answer it in the terms posed, but retains a wide range of powers to deal with it in the same way as an appeal.” [25] Thus, based on the above, we agree with the Respondents that the matters for consideration when determining the reference application has been explained in Anwar Ibrahim and it does not require any further ventilation on the terms as proposed in the QOL. [26] Furthermore, even if there exists a difference of views on any matters at the apex court, the view that is most recently expressed by it would prevail. This Court in Dalip Bhagwan Singh has given a clear pronouncement to that effect. As such, on what to consider in determining whether to refer constitutional questions to the Federal Court under section 84 of the CJA, Anwar Ibrahim is the latest authority. [27] Importantly, as stated earlier, the proposed QOL, in the way it is currently framed is imprecise as to the “principle” in question. The QOL ought to be clear so as to avoid leaving this court in a state of limbo, as to what it actually entails or seeks the Federal Court to answer. Without sufficient precision in the framed QOL, we do not think it is appropriate for us to venture to answer the question in the manner it is presently framed. Prima facie, therefore, QOL 4 does not merit the grant of leave. To remit or not to remit is the question [28] QOL 5 and 6 are new questions raised by the Bar for our determination. In essence, they concern the power of this Court, when dealing with the reference application, to exercise its power under section 81 of the CJA, to decide the reference questions without remitting them back to the High Court. [29] Firstly, we must highlight that the application of the cumulative reading of sections 81, 84 and Article 128(2) of the FC was never an issue ventilated in the courts below. In any case, in respect of the power of this Court in a section 84 reference, Anwar Ibrahim has provided us with the answer. [30] As regards section 81 of the CJA, apart from spelling out the jurisdiction and powers of the Federal Court, to our mind, it states what is obvious. What it does not say is that, it does not obligate the Federal Court to answer any constitutional question referred to it, more so the inconsistency questions, although the Federal Court is clothed with the necessary jurisdiction similar to that of the High Court. We reproduce section 81 of the CJA which provides, inter alia, that the Federal Court “shall have the same jurisdiction and may exercise the same powers as are had and may be exercised by the High Court”. The word “may” therein is clearly a permissive choice, implying some degree of discretion. Hence, the proposed QOL 5 and 6 are not questions that fulfilled the necessary threshold for the grant of leave to appeal. Prima facie case for success [31] One of the important factors for consideration in a leave application under s. 96 of the CJA is whether there is a prima facie case for success in the appeal (Dato’ Seri Anwar Ibrahim v Dato’ Seri Dr Mahathir Mohamad [2001] 2 MLJ 65). In that case, the Court explained that: “In Datuk Syed Kechik bin Syed Mohamed v The Board of Trustees of the Sabah Foundation [1999] 1 MLJ 257 at p 265, this court held that the Federal Court grants leave to appeal from the Court of Appeal sparingly and will not grant such leave unless the following criteria are satisfied by the intending appellant: (i) the judgment of the Court of Appeal has raised a point of general principle which the Federal Court has not previously decided or a point of importance upon which further argument and a decision of the Federal Court would be to public advantage; and (ii) if the point is decided in favour of the intending appellant, there is a prima facie case for success in the appeal. Regarding the second criterion, the court observed (at p 262) that an assessment of the prospects of success should leave be given is, of course, an important factor which the Federal Court would have to take into account. It is however, not necessary for the intending appellant to demonstrate to the court the probability and a reasonable likelihood of the appeal succeeding in the event of leave being granted. All he needs to do is to show that on first impression, the appeal might succeed. In our view, the question which we formulated above raises a question of general principle not previously decided by the Federal Court. It comes under the first criterion of s 96(a). However, Datuk Syed Kechik held that the two criteria of the section are not exclusive. Hence, an assessment of the prospects of success should leave be granted is an important factor which the Federal Court would have to take into account. On this point, we note that Mr. Karpal merely deposed in his supporting affidavit that ‘if any or all issues raised are decided in the applicant’s favour, there is a prima facie case for success in the appeal.’ There was no submission made on this point to demonstrate that there is a prima facie case for success in the appeal.” [32] In the present application for leave before us, neither the affidavit in support, nor the written or oral submissions filed by the Bar addressed this important factor on the prima facie case for success of the appeal. Hence, leave ought to be rejected. Conclusion [33] Our analysis of all the proposed QOL is that they are essentially proposing to us to relook into the meaning, application and scope of section 84 of the CJA, read with Article 128(2) of the FC. In our view, Anwar Ibrahim and all the cited cases above had comprehensively dealt with the matter. We find that the Bar had failed to satisfy us as to where and what the gaps are in those cited cases to merit the grant of leave. [34] In the upshot, we are of the unanimous view that the threshold requirement of section 96 of the CJA has not been met, with respect, by the Bar in this case, and as such, this leave application in Enclosure 1 ought to be and is dismissed with no order as to costs. Dated: 19 June 2024 t.t. ABANG ISKANDAR BIN ABANG HASHIM President of the Court of Appeal Malaysia Parties appearing: For the Applicant:

Steven Thiru

Abdul Rashid Ismail

Gregory Das

Henna Nikita Sanghvi

Nadiah Humairah Sudirman For the Respondents:

SFC Rahazlan Affandi Bin Abdul Rahim 2. SFC Liew Horng Bin 3. FC Nur Syazwani Binti Abdul Aziz Cases referred:

Ah Thian v Government of Malaysia [1976] 2 MLJ 112 2. Dalip Bhagwan Singh v PP [1997] 4 CLJ 645 3. Dato’ Seri Anwar Ibrahim v Dato’ Seri Dr Mahathir Mohamad [2001] 2 MLJ 65 4. Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2020] 4 MLJ 133 5. Datuk Syed Kechik bin Syed Mohamed & Anor v The Board of Trustees of the Sabah Foundation & Ors and another application [1999] 1 MLJ 257 6. Gan Boon Aun v. Public Prosecutor [2016] 6 CLJ 647 7. Gin Poh Holdings Sdn Bhd (in voluntary liquidation) v The Government of the State of Penang & Ors [2018] 3 MLJ 417 8. Mohd Khairul Azam bin Abdul Aziz v Menteri Pendidikan Malaysia & Anor [2020] 1 MLJ 398 9. Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd & Anor and other applications [2011] 1 MLJ 25