Malaysian Bar sues govt to have parts of Emergency Ordinance declared unlawful

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The Malaysian Bar has filed a suit against the government to nullify certain emergency laws and compel the prime minister to advise the Yang di-Pertuan Agong to reconvene Parliament.

The suit also sought a review of certain constitutional provisions which relate to the proclamation of emergency, which the Malaysian Bar said are too broad and inconsistent with the basic structure of the Federal Constitution.

Malaysian Bar president AG Kalidas said the suit has been filed in the Kuala Lumpur High Court because of the body’s statutory duty to uphold the cause of justice, pursuant to the resolution adopted by the Malaysian Bar at its 75th annual general meeting.

“The Emergency Ordinances have resulted in more powers being conferred on the executive, while constitutional safeguards, such as parliamentary scrutiny and accountability, have been reduced.

“It is important that under all circumstances, the rakyat is not deprived of the fundamental protections and procedural safeguards enshrined in our Federal Constitution,” said Kalidas.

Other provisions which the Malaysian Bar seeks to invalidate are as follows:

Emergency (Essential Powers) Ordinance 2021

  • Section 5 – Seizure of land, buildings or movable property. Compensation sums cannot be challenged in court.
  • Section 11 – The executive branch – both state, territory or federal – which existed immediately prior to the proclamation of emergency, will continue to exercise their functions.
  • Section 14 and 15 – These sections relate to the suspension of all legislative bodies while emergency is in force.
  • Section 18 – This ordinance supersede other written laws, in case there are any conflicts or inconsistencies.

Emergency (Essential Powers)(No. 2) Ordinance 2021 [Anti-fake news law]

  • Section 4 – RM100,000 fine, maximum three years jail or both for creating, offering and circulating fake news likely to cause fear or alarm to the public.
  • Section 24 – The accused must submit a defence statement to the prosecution.

Emergency (Essential Powers) (Amendment) Ordinance 2021

  • Section 2 – This provision inserts two new sections (10A and 10B) into the Emergency (Essential Powers) Ordinance 2021 which allowed the executive – federal, state and territories – to bypass Parliament over fiscal matters.

It is uncertain if the High Court will allow the Malaysian Bar’s case to proceed as all emergency ordinances were promulgated by the Agong under Clause 2B of Article 150 of the Federal Constitution.

Clause 8 of Article 150 of the Federal Constitution explicitly stated that no court has jurisdiction over any ordinances promulgated under Clause 2B. – Malaysiakini