Emergency does not infringe on human rights: Sri Ram

 

The emergency proclaimed on Jan 12 to contain the Covid-19 pandemic does not infringe on the fundamental rights of the people and is constitutional, said retired Federal Court judge Gopal Sri Ram.

However, he said that an ordinance promulgated under the emergency can be challenged in court if it breaches fundamental liberties.

“It may be challenged because fundamental rights, by their very description, are fundamental and form part of the basic structure of our constitution,” he said when contacted today.

Sri Ram said the grounds on which the emergency was declared come within Article 150 of the Federal Constitution.

Article 150 (1) states: “If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the federation or any part thereof is threatened, he may issue a proclamation of emergency making therein a declaration to that effect.”

Yang di-Pertuan Agong Al-Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah proclaimed the emergency, which will be enforced up to Aug 1, as a proactive measure to contain the worsening Covid-19 pandemic in Malaysia.

Sri Ram added that although the emergency proclamation is constitutional as it comes within the four corners of Article 150, it can be challenged if anyone had cogent evidence that the declaration was done in bad faith.

“The court has the power to direct the cabinet to advise the king to revoke the emergency. Any executive act may be challenged both on legal as well as constitutional grounds. 

"An example of a legal ground is that the executive took into account irrelevant considerations, that is to say, considerations falling outside the terms of Article 150.

“Another ground is that the declaration was done in bad faith or for an improper purpose. For instance, the case of Municipal Council for Sydney v Campbell. In that case, the local authority was empowered to acquire land for a public purpose. 

"But it acquired land to build a land bank. That was a collateral purpose. But there must be cogent evidence from which a court may infer bad faith or improper purpose,” said Sri Ram.

Sri Ram pointed out that the king also has the authority to extend the current state of emergency beyond Aug 1 if he deems it necessary for the country.

“Article 150 (8)(b)(ii) states that the Yang di-Pertuan Agong has the authority to decide on extending the proclamation of emergency and the validity of his decision cannot be challenged in any courts of law,” he said. - Mkini