Anwar likely to exhaust right under law to refer constitutional questions to Federal Court — Hafiz Hassan
JUNE 4 — In the case of Badan Peguam Malaysia v Yang Berhormat Perdana Menteri Malaysia, Tan Sri Dato' Hj Mahiaddin bin Mohd Yasin & Anor [2024], the Malaysian Bar (Bar) applied to the High Court (HC) to refer no less than 27 constitutional questions to the Federal Court pursuant to Article 128 of the Federal Constitution (FC) and/or Section 84 of the Courts of Judicature Act 1964 (CJA).
The HC dismissed the reference application, essentially on the ground that the questions raised were not constitutional questions that fell exclusively within the jurisdiction of the Federal Court alone to answer. Aggrieved by the decision, the Bar appealed to the Court of Appeal (COA).
Having heard the appeal, the COA affirmed the decision of the HC. One of the main grounds for dismissing the appeal was that the HC had not committed any appealable error in refusing to refer the questions posed to the Federal Court.
Dissatisfied, the Bar filed an application for leave to appeal to the Federal Court. Originally, there were 32 proposed questions of law. However, the Bar revised the questions to six only. — Picture by Yusof Mat Isa
Dissatisfied, the Bar filed an application for leave to appeal to the Federal Court. Originally, there were 32 proposed questions of law. However, the Bar revised the questions to six only.
President of COA, Abang Iskandar, having analysed the questions of law and the applicable law, dismissed the Bar's application for leave to appeal. His Lordship said:
'Our analysis of all the proposed questions of law 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... all the cited cases 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.
'In the upshot, we are of the unanimous view that the threshold requirement [for leave to appeal] has not been met, with respect, by the Bar in this case, and as such, this leave application ought to be and is dismissed with no order as to costs.'
The point is this: application to refer question or questions of law to the Federal Court pursuant to Article 128(2) of the FC and/or Section 84 of the CJA is available to any party to a dispute.
Accordingly, Prime Minister Anwar Ibrahim is as entitled as the Bar to apply to the court to refer constitutional questions to the Federal Court.
Anwar is also entitled to appeal against the decision of the learned High Court judge dismissing his application to refer the constitutional questions to the apex court.
He is likely to exhaust his right under the law.
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