A lawyer is seeking for the Federal Court to determine the validity of a law that bars the courts from hearing legal action over the proclamation of emergency.
Syed Iskandar Syed Jaafar (above) today filed the application for the Kuala Lumpur High Court to refer the constitutional issue of the ouster clause to the apex court.
He is making the bid in relation to his ongoing suit for the High Court to give 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.
On Oct 30 last year, Syed Iskandar 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 a copy of the application seen by Malaysiakini, Syed Iskandar is seeking a ruling for the Federal Court to determine the validity of an amendment made to the Federal Constitution, which inserted the ouster clause.
The amendment in question, Act A514, inserted Clauses (8) and (9) to Article 150.
In relation to the ouster clause, Article 150 (8) states, among others, that no court shall have jurisdiction to determine any proceeding regarding the validity of the proclamation of emergency, its continued operation, and any ordinance promulgated during the emergency.
Syed Iskandar claimed that the amendment violated Article 4(1) of the Federal Constitution.
Article 4(1) states that the Federal Constitution is the supreme law of the Federation and any law passed after Merdeka which is inconsistent with the Federal Constitution, shall, to the extent of the inconsistency, be void.
The lawyer also claimed that it is vital the issue be determined by the Federal Court as the apex court has conflicting decisions on the same issue.
Syed Iskandar was referring to the recent Federal Court decision which allowed Petaling Jaya MP Maria Chin Abdullah’s appeal to strike down her 2016 travel ban as unlawful.
The apex court bench, though, was divided on the other issue raised by her appeal, namely on the validity of an ouster clause in the Immigration Act 1959/63.
The ouster clause in that case was Section 59A of the Immigration Act, which states there shall be no judicial review in any court of any decision by the home minister or Immigration director-general except in regard to any question about compliance with any procedural requirement.
“I also respectfully state that the aforesaid conflicting decisions render it necessary for the one question (amendment of Article 150 of the Federal Constitution via Act A514) to be transmitted and determined by the Federal Court for the sake of certainty of law and to uphold the Federal Constitution as well as the principles of judicial precedent and judicial courtesy,” Syed Iskandar said.
He is also seeking that in the event the High Court allows this application, then the present proceedings related to the lawsuit be stayed, pending disposal of the constitutional reference by the Federal Court.
Earlier today, the government filed to strike out the lawsuit, on grounds that the legal action is allegedly vexatious, frivolous and an abuse of the court process.
Multiple applications
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.
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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