Legal challenges over emergency, ordinances to continue, say lawyers

 

Lawyer R Kengadharan says it is a ‘live issue” and a ruling is needed for future guidance.

PETALING JAYA: Litigants who had filed legal challenges against the government on the proclamation of Emergency and promulgation of emergency ordinances will pursue the matter for the court’s determination, their lawyers said.

There are seven cases pending in the High Court and Court of Appeal.

In one of the cases, lawyer R Kengadharan said his client had given instruction to pursue the matter even though the Emergency proclamation by the Yang di-Pertuan Agong on Jan 11 had come to an end on Aug 1.

“Our challenge is still a live issue and we want a ruling for future guidance,” he said, adding that a new state of Emergency could be declared because of the rising number of Covid-19 deaths.

His client, Syed Iskandar Jaafar al-Mahdzar, wants the Federal Court to determine whether an Emergency proclamation can be challenged on any grounds as an ouster clause in Article 150(8) in the Federal Constitution prevents the judiciary from hearing a complaint.

The reference application will be heard in the High Court on Sept 14.

The Malaysian Bar is also seeking several declarations that the government’s move to proclaim a state of Emergency is unconstitutional.

In its cause papers, the Bar said that in the past, ordinances have resulted in more powers being conferred on the executive at the cost of constitutional safeguards such as parliamentary scrutiny and accountability.

“The original Article 150 as enacted under the ‘Merdeka constitution’ had built-in safeguards that were taken away in subsequent amendments,” it said.

A lawyer in the Bar’s legal team, who asked not to be named, said their reference to the apex court had not been overtaken by time because six ordinances were still enforceable until January next year.

There is a similar challenge by a coalition of NGOs, comprising Bersih 2.0, Suara Rakyat Malaysia (Suaram), Centre for Independent Journalism, Aliran, Kuala Lumpur and Selangor Chinese Assembly Hall, Pergerakan Tenaga Akademik Malaysia, and Save Rivers.

They are seeking a declaration on the role of Parliament and judiciary during a state of Emergency.

The hearing dates for the reference applications by the Bar and the NGOs have yet to be fixed.

In April, the High Court dismissed Pejuang Kuala Lumpur chief Khairuddin Abu Hassan’s challenge that Attorney-General Idrus Harun failed to advise that Prime Minister Muhyiddin Yassin had lost the legitimacy to counsel the King on whether to declare an Emergency.

His lawyer, Mohamed Haniff Khatri Abdulla, said the High Court ruled that Khairuddin had no locus standi to seek the remedy.

“We have filed our appeal because it is not academic though government lawyers are likely to raise this issue,” Haniff said.

Appeals by opposition leader Anwar Ibrahim and MPs Hassan Abdul Karim (Pasir Gudang), Salahuddin Ayub (Pulai) and Johari Abdul (Sungai Petani) and Tebing Tinggi assemblyman Abdul Aziz Bari are also before the Court of Appeal. - FMT