The High Court has jurisdiction to determine constitutional questions unless they fall within the exclusive jurisdiction of the Federal Court, and the threshold for leave to appeal requires a question of general principle or importance.

JUDGMENT

Abang Iskandar Abang Hashim PCA:

The Facts And The Antecedent Proceedings

[1] The Malaysian Bar ("the Bar") in this case applied for leave to appeal under s 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 art 128 of the Federal Constitution ("FC") and/or s 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:

(i) Constitutionality of art 150 of the FCvis-a-vis the basic structure of the FC;

(ii) Constitutionality of arts 150(6) and (8) of the FCvis-a-visarts 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-a-vis several Articles in the FC;

(iv) The interpretation of art 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;

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

(vi) The interpretation of art 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 MarsdenLR 193 ("Ah Thian"); Gin Poh Holdings Sdn Bhd v. The Government Of The State Of Penang & Ors ; 2018 MarsdenLR 380 ; [2018] 4 CLJ 1; [2018] 3 AMR 1 ("Gin Poh"); Mohd Khairul Azam Abdul Aziz v. Menteri Pendidikan Malaysia & Anor ; [2020] 1 MLJ 398 ; [2020] 9 CLJ 309 ("Khairul Azam"); and Datuk Seri Anwar Ibrahim v. Government Of Malaysia & Anor; 2020 MarsdenLR 1517 ; [2020] 3 CLJ 593; [2020] 2 AMR 433.; ("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 s 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