KUALA LUMPUR – The emergency proclaimed on Tuesday to contain the Covid-19 pandemic does not infringe on the fundamental rights of the people and is constitutional, said retired Federal Court judge Datuk Seri 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 today.
Sri Ram said the grounds on which the emergency was declared come under 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 until August 1, as a proactive measure to contain the worsening Covid-19 situation in Malaysia.
Sri Ram said that, although the emergency proclamation is constitutional as it comes within the four corners of Article 150, it can be challenged by anyone with evidence that the declaration was done in bad faith.
“The court has 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 legal grounds 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 the 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 said that the king also has the authority to extend the current state of emergency beyond August 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 court of law.” – Bernama, January 15, 2021
