King’s emergency proclamation cannot be challenged in any court

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The Kuala Lumpur High Court today ruled that the Yang di-Pertuan Agong’s proclamation and the ordinances enacted under the emergency law cannot be challenged in any court of law.

Judge Datuk Ahmad Kamal Md Shahid said this was provided for under Article 150(8) of the Federal Constitution which among others states that the Yang di-Pertuan Agong’s decision over proclamation of emergency shall be final and conclusive and shall not be challenged or called in question in any court on any ground.

The judge made the ruling after dismissing the leave application for a judicial review brought by three elected representatives to challenge Tan Sri Muhyiddin Yassin’s move to advise the Yang di-Pertuan Agong to suspend Parliament and state assembly sittings during an emergency.

Having considered the application, I am of the opinion that the subject matter of this application is not amenable to judicial review,” said Ahmad Kamal.

Pulai MP Salahuddin Ayub of Amanah, Sungai Petani MP Johari Abdul of PKR, and Tebing Tinggi assemblyman Abdul Aziz Bari, who is the Perak opposition leader, had filed a case claiming unconstitutional provisions in the Emergency (Essential Powers) Ordinance 2021, which was gazetted in January, that allowed for the suspension of parliament and state assemblies.

They named Muhyiddin and the federal government as the first and second respondents, respectively.

Ahmad Kamal in his judgement said the application was frivolous as there was no arguable case from the applicants.

“I am of the opinion that the subject matter of this application is not amendable to judicial review.

“It is reiterated that Article 150(8) of the Federal Constitution is valid and constitutional.

“It (the article) has shut the court’s doors from any challenge or application to be made against the proclamation and the ordinances enacted under the emergency laws,” he said.

He said there was nothing in the Federal Constitution that imposes a legal duty on the first respondent to act in the manner dictated by the applicants.

“Hence, in the absence of any legal duty imposed on the first respondent, the applicants’ pleaded reliefs are misconceived in law,” he added.

The judge said, therefore, the applicants have failed to cross the hurdle of the judicial review test as the subject matter in the case has been settled by law.

“It is clear that there is no arguable case for the applicants. Therefore, this application for leave it frivolous. In light of the above, the application for leave to commence judicial review proceedings is dismissed with no order as to costs,” he said.

Senior federal counsels Suzana Atan and S Narkunavathy acted for the respondents while lawyers Datuk Gurdial Singh Nijar and Christopher Leong represented the applicants.

On Jan 26, the trio filed the leave application seeking several reliefs from the court over the proclamation of emergency.

The Attorney-General’s Chambers (AGC) had, on Feb 11, filed an objection to the application on the grounds that the applicants did not have a case that could be argued to enable the court to grant permission for the judicial review.

On Jan 12, Istana Negara, in a statement, announced that the Yang di-Pertuan Agong consented to the Proclamation of Emergency to be implemented nationwide until Aug 1, as a proactive measure to curb the spread of COVID-19 in the country.

Muhyiddin, in a special address in conjunction with the proclamation of the emergency on the same day, explained that the Cabinet had advised the King to issue a proclamation of emergency for the whole country in accordance with Article 150(1) of the Federal Constitution, effective from Jan 11 to Aug 1, 2021.

Article 150 (1), among others, provides that the Yang di-Pertuan Agong can declare a state of emergency if he is satisfied that a grave emergency is taking place causing security or economic life or public order in the federation to be threatened.

In a joint statement issued later, both Gurdial and Leong described the High Court ruling as a “disappointment”, saying their clients were not accorded the opportunity to present a full and substantive argument on the matter.

“The legal threshold for grant of leave to commence judicial review proceedings is very low, that is, the Applicants only needed to show that they have arguable issues and thereafter these issues could be addressed in full and involve substantive arguments at the hearing of the judicial review itself.

“However, the High Court had instead proceeded on the basis that the ouster of the jurisdiction of the court under Article 150(8) of the Federal Constitution has validly ‘shut the court’s doors from any challenge’ of the Emergency law,” they said.

Yusof Mat Isa

Lawyers Christoper Leong (left) and Datuk Gurdial Singh Nijar.

Besides the application filed by the three Opposition representatives, Opposition Leader and PKR president Datuk Seri Anwar Ibrahim has also filed a separate application to challenge the suspension of Parliament as well.

Anwar’s suit filed on January 25 is focused on cancelling what he alleges to be unlawful advice by Prime Minister Tan Sri Muhyiddin Yassin and his Cabinet to the Yang di-Pertuan Agong to make the allegedly unconstitutional Section 14 provision in the Emergency Ordinance which suspended Parliament.

Anwar wants the courts to compel Muhyiddin and the government to advise the Agong to revoke Section 14.