Govt can be sued for breach of rights during emergency, says ex-judge

PETALING JAYA: Legal action can be instituted against the government during the emergency if fundamental rights are violated, including failure to provide fair compensation for property acquired, a retired judge said.

Gopal Sri Ram said Article 150(6) of the Federal Constitution does not protect ordinances from breaching fundamental rights during an emergency.

“A law which is tested must be fair and just,” he told FMT.

Sri Ram said Article 69(2), a clause in the supreme law of the land, also states that Putrajaya may sue and be sued.

He said this in response to the Emergency (Essential Powers) Ordinance 2021, which states that compensation for acquiring buildings and resources to combat Covid-19 cannot be challenged in court on any ground.

The ordinance also says that no action can be taken against the government and civil servants for negligence or omission if done in good faith.

Sri Ram said Article 13(2) states no law shall provide for the compulsory acquisition or use of property without adequate compensation.

“Our Federal Court has also ruled that fundamental rights are part of the basic structure of the constitution. So, the ordinance cannot override them,” he said.

He said it was also for the government to prove that the action by its representative is done in good faith.

“They cannot take advantage of the defence but must prove the elements of good faith to dismiss a suit,” he said.

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