Bersih and six other non-governmental organisations (NGO) have hauled Prime Minister Muhyiddin Yassin to court over the recent emergency declaration.
Lawyer Edmund Bon, on behalf of the seven NGOs, filed the originating summons at the High Court in Kuala Lumpur earlier today.
The other plaintiffs are Suara Rakyat Malaysia (Suaram), the Centre for Independent Journalism (CIJ), Aliran, the Kuala Lumpur and Selangor Chinese Assembly Hall (KLSCAH), Pergerakan Tenaga Akademik Malaysia (Gerak), and Save Rivers.
Bon confirmed the filing of the suit during an online press conference held via Zoom this afternoon.
In a media statement read out by Thomas Fan and other representatives of the NGOs, they said the suit was filed against Muhyiddin and the Malaysian government to seek court declarations on issues related to the Emergency (Essential Powers) Ordinance 2021.
They expressed concern that the proclamation of emergency and the Emergency Ordinance has resulted in both houses of Parliament being unable to fulfil their constitutional role of debating and voting on the Emergency Ordinance due to the suspension of the Dewan Rakyat and the Dewan Negara.
“We would like the courts to declare if they have the power to review any attempt that circumvents constitutional provisions which require these instruments to be brought before Parliament first,” they said.
The seven NGOs have joined the likes of PKR president Anwar Ibrahim and Khairuddin Abu Hassan, a stalwart of former prime minister Dr Mahatir Mohamad, in going to court to challenge the validity of Muhyiddin’s advice to the Yang di-Pertuan Agong to declare the state of emergency.
The NGO representatives present during media conference are Bersih chairperson Thomas Fann, Suaram executive director Sevan Doraisamy, CIJ executive director Wathshlah G Naidu, Aliran president Anil Netto, KLSCAH vice-president Ser Choon Ing, Gerak chairperson Prof Zaharom Nain, and Save Rivers chairperson Peter Kallang.
The NGO representatives said the suit seeks for court declarations that Article 150 (8) of the Federal Constitution and Emergency (Essential Powers) Ordinance 2021 is invalid.
Article 150(8) acts as an ouster clause against the courts hearing a legal action linked to the emergency.
Within the Emergency Ordinance, there is Section 14 which suspends Parliament.
They said the suit also seeks for the court to look into the question of whether the Proclamation of Emergency issued on Jan 11, and the Ordinance promulgated three days later, have to be brought before both Houses of Parliament as these august Houses are not dissolved at present.
“The suspension of Parliament is an extremely drastic measure. This emergency overreaches the constitution and is disproportionate. As citizens and public-spirited, interest groups fighting for reform, the suspension of Parliament affects our work greatly as we are unable to access and seek recourse during parliamentary sittings on matters of concern.
"We believe the rule of law should be preserved and the spirit of the Federal Constitution is adhered to, where there is a clear separation of powers between the executive, legislative and judiciary, and that no one branch of government should subjugate the others.
"The loss of such checks and balances in our parliamentary democracy would have a long-term irrevocable impact that could ruin our country, as an unchecked government could turn draconian and kleptocratic.
"We believe the government already has enough powers to handle the Covid-19 crisis and they do not need to resort to suspending Parliament through the Emergency Ordinance,” the NGO representatives said.
They warned that even though political stability is necessary for the government to steer Malaysia out of this unprecedented crisis, stability must not be achieved at the expense of institutional checks and balances provided by Parliament and the judiciary.
“For these reasons, it is in the public interest that we undertook this legal challenge to allow the court to determine the constitutional powers of Parliament and the judiciary in upholding our system of checks and balances.
“We undertook this ligation in the public interest to defend the rule of law and the system of checks and balances and to seek the judiciary’s determination on issues related to the Emergency Ordinance,” they said.
Towards the end of the press conference, Fann reiterated that the NGOs instituted the legal action on behalf of all Malaysians due to concern of any prime minister and the executive being able to utilise the emergency without just cause to suspend Parliament and the judiciary in a single stroke.
“I believe this issue should concern all of us, this bypassing of the constitutional process in our Federal Constitution.
“We hope the judiciary will look at that part of the constitution and the law and give judgment that reinstates parliamentary democracy, whereby the executive cannot act alone but with the legislature and judiciary, in order to defend against gross abuse (of power),” he said.
Fann also said the NGO’s legal team is assisting pro bono (without expecting monetary payment) in the public interest.
Meanwhile, according to a copy of an FAQ about the legal action made available to the media today, the seven NGOs reiterated that the suit does not seek to challenge the powers conferred on the Agong to call for an emergency on the advice of the prime minister.
They said that they are seeking for the court to determine whether it has power to “review any attempt by the government to frustrate the constitutional safeguard requiring that emergency ordinances be debated and voted in Parliament”.
They also reiterated that the suit seeks to invalidate the current Emergency Ordinance. - Mkini
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