Bersih, six other NGOs take PM to court over advice on emergency

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Seven NGOs file suit to challenge the PN government’s declaration of emergency, claiming the consent of parliament is a mandatory requirement.

A group of seven non-governmental organisations have joined a growing number of court challengers against the Perikatan Nasional (PN) government’s recourse to a nationwide state of Emergency, arguing that parliamentary consent is required to do so.

Shafwan Zaidon

The group comprises Bersih 2.0, Suara Rakyat Malaysia, the Centre for Independent Journalism, Aliran, the Kuala Lumpur and Selangor Chinese Assembly Hall, Pergerakan Tenaga Akademik Malaysia, and Save Rivers; their suit was filed by the legal firm AmerBON Advocates at the Kuala Lumpur High Court today.

Constitutional lawyer Edmund Bon who is acting for the group told reporters that this suit differed from others that had been recently filed against the Emergency Ordinance (EO).

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“For us, any EO should be tabled for debate in Parliament as soon as possible, per Article 150(3) of the Federal Constitution,” he said during the virtual press conference announcing the suit.

According to Bon, the clause makes it mandatory for any Emergency proclamation to be presented at both the Dewan Rakyat and Dewan Negara, which he said has not been dissolved.

He added that if it not done, the proclamation shall cease to have effect.

The seven NGOs have joined the likes of PKR president Anwar Ibrahim and Khairuddin Abu Hassan, a stalwart of former prime minister Dr Mahatir Mohamad, in going to court to challenge the validity of Muhyiddin’s advice to the Yang di-Pertuan Agong to declare the state of emergency.

The NGO representatives present during media conference are Bersih chairperson Thomas Fann, Suaram executive director Sevan Doraisamy, CIJ executive director Wathshlah G Naidu, Aliran president Anil Netto, KLSCAH vice-president Ser Choon Ing, Gerak chairperson Prof Zaharom Nain, and Save Rivers chairperson Peter Kallang.

The NGO representatives said the suit seeks for court declarations that Article 150 (8) of the Federal Constitution and Emergency (Essential Powers) Ordinance 2021 is invalid.

Article 150(8) acts as an ouster clause against the courts’ hearing a legal action linked to the emergency.

“We believe the government already has enough powers to handle the Covid-19 crisis and they do not need to resort to suspending Parliament through the Emergency Ordinance,” the NGO representatives said.

They warned that even though political stability is necessary for the government to steer Malaysia out of this unprecedented crisis, stability must not be achieved at the expense of institutional checks and balances provided by Parliament and the judiciary.

“For these reasons, it is in the public interest that we undertook this legal challenge to allow the court to determine the constitutional powers of Parliament and the judiciary in upholding our system of checks and balances.

“We undertook this ligation in the public interest to defend the rule of law and the system of checks and balances and to seek the judiciary’s determination on issues related to the Emergency Ordinance,” they said.

Chairman of electoral watchdog Bersih 2.0 Thomas Fann said the suspension of Parliament is an extremely drastic measure, and that the EO overreaches the Constitution and is disproportionate.

“As citizens and public-spirited, interest groups fighting for reform, the suspension of Parliament affects our work greatly as we are unable to access and seek recourse during parliamentary sittings on matters of concern.

“We believe the rule of law should be preserved and the spirit of the Constitution adhered to, where there is a clear separation of powers between the Executive, Legislative and Judiciary, and that no one branch of government should subjugate the others,” he said in the same virtual press conference.

Asked if the NGOs’ suit is tantamount to challenging the powers of the Yang di-Pertuan Agong, whose reserve powers include calling for an Emergency on the Prime Minister’s advice, Fann said this is not the case.

Fann also said the NGO’s legal team is assisting pro bono (without expecting monetary payment) in the public interest.

Meanwhile, according to a copy of an FAQ about the legal action made available to the media today, the seven NGOs reiterated that the suit does not seek to challenge the powers conferred on the Agong to call for an emergency on the advice of the prime minister.

They said that they are seeking for the court to determine whether it has power to “review any attempt by the government to frustrate the constitutional safeguard requiring that emergency ordinances be debated and voted in Parliament.

They also reiterated that the suit seeks to invalidate the current Emergency Ordinance.

On January 12, Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah declared a state of Emergency following advice from Prime Minister Tan Sri Muhyiddin Yassin.

Anwar’s suit filed last January 26 is challenging Muhyiddin’s advice to the Agong to declare Emergency, the suspension of Parliament, and the postponement of elections for the duration of the Emergency.

Khairuddin’s suit filed last January 29, similarly claims that Muhyiddin did not have the parliamentary legitimacy to advise the King to declare an Emergency on grounds that the Pagoh MP no longer commanded the majority in the Dewan Rakyat at that time.

The Emergency took effect on January 11 and is supposed to last till August 1, or until the Covid-19 crisis ends.