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2022 MarsdenLR 1902
HIGH COURT (KUALA LUMPUR)
AHMAD KAMAL MD SHAHID, J
Bersih & Adil Network Sdn Bhd & Ors – Plaintiff
Versus
Tan Sri Dato' Hj Mahiaddin bin Md Yasin (dalam kapasitinya sebagai Perdana Menteri Malaysia) & Anor (Khairil Nizam bin Khirudin & Ors intervenor) and another – Defendant
SAMAN PEMULA NO WA-24-6-02/2021 AND WA-24-22-04/2021
Edmund Bon (with Lee Yee Woei) (Amer BON) in Case No WA-24-6-02 of 2021 for the plaintiffs.
Steven Thiru (with Gregory Dass, Abdul Rashid Ismail, Azreen Ahmad Rastam and Priscilla Lim) (Rashid Zulkifli) in Case No WA-24-22-04 of 2021 for the plaintiffs.
Suzana Atan (with Mohammad Sallehuddin bin Md Ali) (Federal Counsel, Jabatan Peguam Negara) in Case Nos WA-24-6-02 of 2021 and WA-24-22-04 of 2021 for the defendants.
Mohamad Izzat bin Ghazali (with Ahmad Amzar bin Ahmad Azlan and Muhammad Imran bin Abu) (Nazrin & Izzat) in Case No WA-24-6-02 of 2021 for the first, second and third interveners.
Surendra Ananth (Surendra Ananth) in Case No WA-24-06-02 of 2021 for the fourth and fifth interveners.
The High Court has jurisdiction to adjudicate on the constitutionality of laws without needing to refer questions to the Federal Court, except when challenging legislative competence.
Headnote:(A) Federal Constitution - Articles 4, 8, 121, and 150(2B) - Courts Jurisdiction - Plaintiffs sought to declare the Emergency (Essential Powers) Ordinance 2021 and Constitution (Amendment) Act 1981 unconstitutional. Court found that constitutional questions framed are within the jurisdiction of the High Court, not the Federal Court, as they concern violations of Articles 4, 8, and 121. (Paras 10, 11, 12, 27, 49)
(B) Jurisdiction Issues - The court declined to refer constitutional questions to the Federal Court under Article 128 due to the nature of challenges being on constitutional validity rather than legislative competence. (Paras 48, 54)
(C) Exclusive Jurisdiction - It was established that the Federal Court has exclusive original jurisdiction only for questions regarding legislative competence but not for challenges based on constitutional validity. (Paras 51, 52)
Facts of the case:
Plaintiffs, representing various organizations, challenged the constitutionality of the Emergency Ordinance and the Amendment Act, asserting violations of their constitutional rights.
Findings of Court:
The court determined the High Court has the authority to adjudicate the challenges posed, relating to the constitutionality of the laws.
Issues: The key issues included whether the questions referred could be addressed by the Federal Court and the matter of jurisdiction over constitutional challenges.
Ratio Decidendi: The court concluded that such questions regarding constitutional validity could be resolved within the High Court’s jurisdiction, distinguishing them from those requiring Federal Court intervention.
Result: Applications to refer the questions to the Federal Court dismissed.
| Table of Content |
|---|
| 1. plaintiffs seek to challenge laws. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9) |
| 2. constitutional questions regarding emergency laws. (Para 10 , 12 , 21 , 22 , 24) |
| 3. court reviews jurisdiction and applicability of referral. (Para 26 , 27 , 28 , 29 , 30 , 31 , 32 , 48) |
| 4. exclusive jurisdiction of the federal court defined. (Para 39 , 41 , 49 , 50 , 51) |
| 5. applications to refer questions denied by the court. (Para 53 , 54) |
JudgmentIntroduction
[1]The Plaintiffs on 4.2.2021 filed an Originating Summons WA-24-6-02/2021 (OS 6) (Enclosure 1) essentially seeking to declare the Emergency (Essential Powers) Ordinance 2021 and Constitution (Amendment) Act 1981 unconstitutional.
[2]The First Plaintiff is the entity that is the Secretariat for work undertaken in the name of the Coalition for Clean and Fair Elections, or better known as BERSIH 2.0. The First Plaintiff sues as an organisation.
[3]The Second Plaintiff is the President of the Malaysian Academic Movement (Pertubuhan Pergerakan Tenaga Akademik Malaysia), or better known as GERAK. The Second Plaintiff sues on behalf of the organisation.
[4]The Third Plaintiff is the President of ALIRAN (Persatuan Aliran Kesedaran Negara). The Third Plaintiff sues on behalf of the organisation.
[5]The Fourth Plaintiff is the entity that is the Secretariat for work undertaken in the name of Suara Rakyat Malaysia, or better known as SUARAM. The Fourth Plaintiff sues as an organisation.
[6]The Fifth Plaintiff is the Vice President of The Kuala Lumpur and Selangor Chinese Assembly Hall (Dewan Perhimpunan China Kuala Lumpur dan Selangor). The Fifth Plaintiff sues on behaif of the organisation.
[7]The Sixth Plaintiff is the entity that is the Secretariat for work undertaken in the name of SAVE RIVERS. The Sixth Plaintiff sues as an organisation.
[8]The Seventh Plaintiff is the entity that is the Secretariat for work undertaken in the name of Centre for Independent Journalism, or better known as CI J. The Seventh Plaintiff sues as an organisation.
[9]The Eighth Plaintiff is the Chairperson of the Coalition for Clean and Fair Elections, or better known as BERSIH 2.0. He sues as an individual.
[10]Through the OS 6, the Plaintiffs seek inter alia the following reliefs:
i.A declaration that Emergency (Essential Powers) Ordinance 2021 promulgated under Article 150(2B) of the Federal Constitution (FC) is unlawful and unconstitutional, and therefore null, void and of no effect;
ii.Alternatively, a declaration that section 14Emergency (Essential Powers) Ordinance 2021
iii.A declaration that section 15(d) of the Constitution (Amendment) Act 1981 (Act A514) adding Article 150(8) of the FC that purportedly ousts the jurisdiction of the courts is unconstitutional for violating Articles 4, 8 and 121 of the FC and/or the basic structure of the FC.
[11]On 17.3.2021, the Plaintiffs, pursuant to section 84Court Judicature Act 1964 (CJA)Court (Enclosure 7).
[12]a) The 7 (seven) constitutional questions are as follows:
i)Whether section 15(d) of the Constitution (Amendment) Act 1981 (Act A514) which added Article 150(8) of the FC that purportedly ousts the jurisdiction of the courts in its entirety is unconstitutional for violating Articles 4, 8 and 121 of the FC;
ii)Whether Article 150(8)(b)(iii) of the FC, even if valid, only prevents the courts from reviewing the validity of an Ordinance made under Article 150(2B) of the FC but does not prevent the review of any of the provisions of the Ordinance;
iii)Whether Article 150(8) of the FC, even if valid, prevents the courts from reviewing the constitutionality of an Ordinance made under Article 150(2B) of the FC that does not comply with, or that seeks to prevent, frustrate and/or disable, the requirements of Article 150(3) of the FC to have such Ordinance laid before both Houses of Parliament;
iv)Whether the words “Notwithstanding anything in this Constitution” contained in Article 150(8) of the FC, even if valid, includes Article 150 of the FC
v)Given that both Houses of Parliame
