[UPDATED] Agong’s stand on emergency indisputable in court

KUALA LUMPUR – The Yang di-Pertuan Agong’s decision on the emergency proclamation and ordinances enacted cannot be challenged in court on any grounds, ruled the high court here.

The high court has ruled that any challenge made against the Yang di-Pertuan Agong’s emergency proclamation and ordinances enacted is not amenable to judicial review.

Judge Ahmad Kamal Md Shahid said Article 150(8), which states that the king’s decision cannot be challenged in any court on any grounds, is valid and constitutional.

He also held that the application by the three applicants to challenge the Agong’s decision over proclamation of emergency was not amenable to judicial review.

“Article 150(8) has shut the court’s doors from any challenge or application made against the proclamation and the ordinances enacted.”

The judge made the ruling after dismissing the leave application for a judicial review brought by three elected representatives to challenge Prime Minister Tan Sri Muhyiddin Yassin’s move to advise the Agong to suspend Parliament and state assembly sittings during an emergency.

The trio were Simpang Jeram assemblyman and Pulai MP Datuk Seri Salahuddin Ayub, Gurun assemblyman and Sg Petani MP Datuk Johari Abdul, and Tebing Tinggi assemblyman Abdul Aziz Bari.

In their application, they named Muhyiddin and the Malaysian government as respondents.

“It is reiterated that Article 150(8) of the federal constitution is valid and constitutional. More importantly, Article 150(8) of the federal constitution has shut the court’s doors from any challenge or application be made against the proclamation and the ordinances enacted under the emergency law,” the judge said.

He also said that based on his findings of Article 150(8) of the federal constitution, no judicial review can be made to challenge the decision of the king under Article 150(1) and Article 150(2B) of the same constitution.

“In fact, this issue had been decided by the Federal Court in Datuk Seri Anwar Ibrahim v Public Prosecutor,” he said.

Kamal further said that there is nothing in the federal constitution that imposes a legal duty on the first respondent (Muhyiddin) to act in the manner dictated by the applicants.

“Hence, in the absence of any legal duty imposed on the first respondent, the applicants’ pleaded reliefs are misconceived in law,” he said.

The judge said that therefore, the applicants have failed to cross the hurdle of the judicial review test as the subject matter in the case has been settled by law.

“It is clear that there is no arguable case for the applicants. Therefore, this application for leave is frivolous. In light of the above, the application for leave to commence judicial review proceedings is dismissed with no order as to costs,” he said. 

Senior federal counsels Suzana Atan and S. Narkunavathy acted for the respondents while lawyers Datuk Gurdial Singh Nijar and Christopher Leong represented the applicants.

On January 26, the trio filed the leave application seeking several reliefs from the court over the proclamation of emergency.

The Attorney-General's Chambers had, on February 11, filed an objection to the application on the grounds that the applicants do not have a case that can be argued to enable the court to grant permission for judicial review.

On January 12, Istana Negara, in a statement, announced that the Yang di-Pertuan Agong consented to the proclamation of emergency to be implemented nationwide until August 1 as a proactive measure to curb the spread of Covid-19 in the country.

Muhyiddin, in a special address in conjunction with the proclamation of the emergency on the same day, explained that the cabinet had advised the king to issue a proclamation of emergency for the whole country in accordance with Article 150(1) of the federal constitution, effective from January 11 to August 1, 2021. 

Article 150(1), among others, provides that the king can declare a state of emergency if he is satisfied that a grave emergency is taking place, which is causing security, economic life or public order in the federation to be threatened. – The Vibes, March 11, 2021