Suit seeks legal development over issue of emergency - lawyer

A lawyer will continue with his suit seeking court guidance over the Yang di-Pertuan Agong’s earlier refusal to heed Prime Minister Muhyiddin Yassin’s advice for declaration of emergency.

This is in spite of the Agong recently agreeing to Muhyiddin’s later advice for an emergency to tackle the Covid-19 pandemic in Malaysia.

Plaintiff Syed Iskandar Syed Jaafar told Malaysiakini today that he is seeking court guidance because his suit has the intention of developing the law regarding constitutional power in relation to the imposition of emergency in the country.

“I am only interested in developing the law for us as well as for reference by other countries in the Commonwealth.

“This would be in regard to constitutional law and civil procedure in action. It will benefit the understanding of the laypersons as well,” he said.

On Oct 30 last year, Syed Iskandar filed the suit to seek the court’s guidance over the issue of the Agong’s initial refusal to accede to Muhyiddin’s advice for an emergency.

Earlier on Oct 25 last year, it was reported that the Agong decided not to accede to Muhyiddin's request on the declared reason that the current Perikatan Nasional government was handling the Covid-19 pandemic effectively.

However, on Jan 12 this year, the king agreed to Muhyiddin's advice for a proclamation of emergency to tackle the pandemic.

Syed Iskandar today explained that court guidance is necessary as the judiciary plays a vital role in acting as a check and balance to prevent abuse of power by the executive arm of government, among others.

The lawyer said this issue is tied back to the provision in the Federal Constitution that states the courts have no jurisdiction to look into the issue of the emergency declaration.

"I am seeking the court to declare this provision null and void.

“The court needs to act to provide check and balance to deter abuses by the other arms of the government such as the executive.

“This would be in line with the doctrine of separation of power as enshrined in the Federal Constitution - the separation between the executive, the legislature and judiciary,” Syed Iskandar said.

Previously, the Kuala Lumpur High Court fixed Feb 16 to hear multiple applications by numerous lawyers, among other parties, seeking to intervene in the matter.

Yesterday, it was reported that former prime minister Dr Mahathir Mohamad and four other Pejuang party members joined the list of proposed intervenors when they filed an application to intervene in the suit.

It was reported that Syed Iskandar would be objecting to all the intervenor applications on grounds that they do not have any legal interest in the matter.

Through the suit, he is seeking for the court to determine, among others, whether the Agong "has an unfettered discretion not to declare an emergency despite the advice of the prime minister of the federal cabinet to the contrary".

The plaintiff also wants the court to determine this through the true construction of Articles 40 and 150 of the Federal Constitution.

Article 40 generally deals with the need for the monarch to act in accordance with the advice of the cabinet or of a minister acting under the general authority of the cabinet, among others.

"This is a public interest litigation brought to vindicate the rule of law and to uphold the Federal Constitution," Syed Iskandar stated in the suit.

Article 150 deals with the power of the Agong to issue a proclamation of emergency when there is a situation where the security, economic life or public order in the federation, or any part thereof, is threatened, among others.

Syed Iskandar is also seeking for the court to determine the validity of an amendment to Article 150, which inserted clauses, among others, that bar the court from hearing legal actions in relation to the issue of a proclamation of emergency.

Among the amendments is the insertion of Article 150(8), which states that no court shall have jurisdiction to entertain or determine any application, question, or proceeding, in whatever form, on any ground, regarding the validity of the proclamation of emergency.