May 23 fixed for bid by Anwar, 4 others for leave to challenge Emergency

 

The deputy registrar of the Federal Court directed the parties to file submissions and an executive summary of their cases by May 6.

PUTRAJAYA: The Federal Court has fixed May 23 to hear an application by five elected representatives, including Anwar Ibrahim, for leave to challenge the proclamation of emergency and ordinances issued by the Yang di-Pertuan Agong in January last year to fight the Covid-19 pandemic.

Lawyer Sangeet Kaur Deo, who is representing the opposition leader, said the date was fixed today after a case management before deputy registrar Rasidah Roslee.

Lawyer Nirvan Gopalakrishnan appeared for MPs Hassan Karim (Pasir Gudang), Salahuddin Ayub (Pulai) and Johari Abdul (Sungai Petani) and also for Tebing Tinggi (Perak) assemblyman Aziz Bari who had filed two separate actions.

Sangeet said Rasidah also directed the parties to file submissions, bundle of authorities and an executive summary of their cases by May 6.

Last month, Anwar filed eight questions of law to obtain leave from the court for the merit of the complaint – that the Emergency was unnecessary and the Cabinet gave wrong advice to the King – to be heard.

The others have submitted two common legal questions.

Applicants must satisfy the court by framing novel legal and constitutional questions that are of public importance and raised for the first time as required under Section 96 of the Courts of Judicature Act.

On Nov 24, the Court of Appeal dismissed the appeals of the five, stating that the court was not “clothed with the jurisdiction” to entertain any judicial review application even if leave was granted to them.

“It will be an exercise in futility as the court is barred under Article 150 (8) of the Federal Constitution from questioning the King’s decision to proclaim the Emergency and the ordinances,” said Has Zanah Mehat, who headed a three-member bench.

She said Articles 150(8) and (9) touched on the King’s power to proclaim a state of Emergency and promulgate ordinances, and Parliament had excluded judicial review applications on such matters.

“This has shut the door on the courts to hear any challenge on the Emergency and ordinances,” she said, adding that a constitutional amendment in 1981 to insert Clause 8 was valid.

Has Zanah said the wording in Clause 8 was clear in disallowing judicial scrutiny on any grounds.

Anwar, who is also the Port Dickson MP, and Hassan filed separate applications in the Kuala Lumpur and Johor Bahru High Courts.

Salahuddin, Johari and Aziz filed a joint application in Kuala Lumpur.

They said the advice given to the King by then prime minister Muhyiddin Yassin and his Cabinet was unlawful and subject to legal challenge.

Anwar’s complaint was that Muhyiddin’s administration could have relied on the movement control order (MCO) and the Prevention and Control of Infectious Diseases Act to combat the Covid-19 pandemic instead of resorting to emergency ordinances.

The others also challenged the constitutionality of the Emergency proclamation and suspension of Parliament and state legislative assemblies.