Lawyer seeks court’s clarification if emergency law can be challenged

KUALA LUMPUR: A lawyer is seeking legal redress on whether the Yang di-Pertuan Agong’s decision not to declare an emergency, as advised by Prime Minister Muhyiddin Yassin, can be challenged in court.

The plaintiff, Syed Iskandar Jaafar al-Mahdzar, has posed two legal questions.

They are:

• Whether on a true construction of Articles 40 and 150 of the Federal Constitution, the King has an unfettered discretion not to declare an emergency despite the advice of the prime minister or the Cabinet, and;
• Whether an amendment to Article 150, by adding clauses (8) and (9), is violative of the basic structure of the constitution, in regards to Article 4(1).

Clause 8 states that no legal challenge can be mounted once the King is satisfied an emergency is not required.

Clause 9 states that Parliament (Dewan Rakyat and Dewan Negara) should be regarded as sitting “only if the members of both houses are assembled together and carrying out the business”.

Article 4 (1) states the constitution is the supreme law of the land and law passed, which is against the charter, must be declared void

The lawyer said he believed the legal questions posed were important to uphold the rule of law and to protect the constitution.

Syed Iskandar, who named the government as the defendant, filed the originating summons in the High Court today through Messrs R Kengadharan & Co.

In an affidavit in support of the action, Syed Iskandar said, with respect, that the King, in not accepting the advice of the prime minister or his Cabinet, did not perform his function in accordance with Articles 40 and 150.

“I also humbly state that the King’s decision has raised constitutional questions of public importance,” he added.

On Oct 23, Muhyiddin advised the King to issue an emergency proclamation under Article 150 after the Cabinet agreed on the matter at a special meeting.

Two days later, after a special meeting among the Malay Rulers, the King decreed that an emergency proclamation in the entire, or part of, country was not necessary

Syed Iskandar said: “This is a rejection of the prime minister’s advice.”

He said the amendment to Article 150 to include clauses 8 and 9 was in violation of the constitution and must be declared null and void, adding that Parliament has no authority to amend the constitution to exclude the court from inquiring into the validity of the law.

“The amendment completely violated the court’s judicial review power, which is part of the basic structure of the constitution.”

He also said the inclusion of clause 9 also breached the parliamentary democracy doctrine, which is another basic structure of the constitution.