The government has filed to strike out a lawsuit seeking court guidance over the Yang di-Pertuan Agong’s initial refusal to accede to Prime Minister Muhyiddin Yassin’s advice to declare a state of emergency.
The striking-out application was filed by a federal counsel at the Kuala Lumpur High Court earlier this morning.
According to a copy of the filing sighted by Malaysiakini, the government seeks to strike out the lawsuit on grounds it is vexatious, frivolous and an abuse of the court process.
On Oct 30 last year, lawyer Syed Iskandar Syed Jaafar filed the lawsuit seeking the court’s guidance over the issue of the Agong’s initial refusal to accede to Muhyiddin’s advice to declare 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.
According to the affidavit-in-support of the striking-out application, the government contended that the plaintiff - Syed Iskandar - failed to specify what public or personal interest had been contravened due to the Agong’s initial refusal to declare an emergency.
The affidavit, signed by Solicitor-General Abdul Razak Musa, claimed that the lawsuit also failed to specify the plaintiff’s legal interests in the matter, issues between him and the defendant (government) as well as what constitutional right of his that has been allegedly contravened, among others.
“Furthermore, I verily believe and state that the determination of the issues (raised in the lawsuit) by this court is an academic exercise,” Abdul Razak added.
“The provision of Article 150 (8) of the Federal Constitution states clearly and obviously the exclusion of the jurisdiction of this honourable court from entertaining or deciding on any application to dispute or challenge the decision of the Yang di-Pertuan Agong regarding the proclamation of emergency.
“The determination (by the court) of these questions (raised in the suit) will not bring any effect to the decision (of the Agong not to accede to Muhyiddin’s initial request for an emergency),” the solicitor-general said.
On Jan 19, Syed Iskandar reportedly said that he would continue with his current suit, despite the Agong having agreed to Muhyiddin’s second request for a declaration of emergency to tackle the spread of the Covid-19 pandemic in Malaysia.
The plaintiff told Malaysiakini that the suit is meant to seek court guidance with the intention of developing the law regarding constitutional power over the imposition of an emergency in the country.
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.
On Jan 18, 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 intervenor applications on the grounds that they do not have any legal interest in the matter.
Through his suit, Syed Iskandar 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".
"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.
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.
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 in 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 a proclamation of emergency. - Mkini
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