Aliran, other NGOs seek court declarations on Emergency Ordinance

The focus of the suit is the Emergency Ordinance, which suspended Parliament and the state legislative assemblies for as long as the country is in a state of emergency

Aliran and six other NGOs have filed an originating summons against Prime Minister Muhyiddin Yassin and the federal government to challenge the lawfulness and constitutionality of the Emergency (Essential Powers) Ordinance 2021.

The other NGOs that are co-litigants are the Coalition for Clean and Fair Elections (Bersih 2.0), Suara Rakyat Malaysia (Suaram), Centre for Independent Journalism (CIJ), Pergerakan Tenaga Akademik Malaysia (Gerak), Save Rivers (Sarawak), and the Kuala Lumpur and Selangor Chinese Assembly Hall (KLSCAH).

Legal firm AmerBON Advocates did an online filing of the suit with the High Court yesterday. The seven NGOs then held an online press conference, which the Bersih 2.0 Facebook page broadcast live.

Representatives from the seven NGOs and journalists from various newspapers, online dailies and social media took part in the online press conference. A lively exchange ensued as the NGO representatives and lawyers fielded questions from the journalists and Facebook viewers.

The focus of the suit is the Emergency Ordinance, which suspended Parliament and the state legislative assemblies for as long as the country is in a state of emergency. The government gazetted it on 14 January, but applied it retrospectively with effect from 11 January.

At the press conference, Aliran and the other six NGOs clarified that they are not questioning the Agong’s discretion to declare an Emergency as laid out in Article 150(1).

But the suit is to seek court declarations on the role of Parliament and the judiciary in ensuring checks and balances during emergency, in particular:

  1. Whether the proclamation of an emergency on 11 Jan, and the Emergency Ordinance promulgated on 14 Jan 2021 needed to be laid before both Houses of Parliament since both Houses had not been dissolved; they only stood adjourned
  2. Whether Section 14 of the Emergency Ordinance, which purports to disable the operation of the provisions of the Federal Constitution is invalid insofar as it prevents, frustrates and/or disables the operation of Article 150(3) of the Federal Constitution.
  3. Whether the 1981 constitutional amendment that added Article 150(8) of the Federal Constitution that purportedly ousts the jurisdiction of the courts is unconstitutional
  4. Whether Article 150(8) of the Federal Constitution, even if valid, prevents the courts from reviewing the constitutionality of an ordinance made

The seven NGOs asserted they remain unconvinced that an emergency is needed, even if it is to deal with political instability, despite the official explanation that it was to handle the worsening coronavirus pandemic. Instead, they believe there are political mechanisms available to the government to ensure political stability.

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The NGOs expressed concern that “the rule of law should be preserved and the spirit of the Federal Constitution adhered to, where there is a clear separation of powers … and that no one branch of government should subjugate the others”.

For these and other reasons given, they hoped the court would “determine the constitutional powers of Parliament and the judiciary in upholding our system of checks and balances”.

For everybody’s convenience, the NGOs have prepared a list of frequently asked questions and simple answers to them.

  • Why file a legal suit?
  • What are we expecting out of this legal suit?
  • Are we challenging the powers of the Yang di-Pertuan Agong?
  • Article 150(8) of the Federal Constitution says that the emergency proclamation and related ordinances are final and cannot be challenged in any court or on any ground. Why are the NGOs proceeding with the legal suit?
  • Would the legal suit lead to the lifting of the state of emergency?
  • Do we as NGOs have the standing to initiate legal action (locus standi)?

Four other lawsuits

To date, there are four other lawsuits in the courts in relation to the emergency, the Emergency Ordinance and the Federal Constitution. Each of the four has a slightly different approach or focus.

Anwar Ibrahim’s suit was filed on 25 January. It focuses on cancelling the alleged unlawful advice by the prime minister and his cabinet to the Agong to declare an emergency, as a result of which Parliament was suspended under Section 14 of the Emergency Ordinance.

Accordingly, the Opposition leader is requesting the courts to compel the prime minister and the federal government to advise the Agong to revoke Section 14. Put another way, what is being challenged is not the Agong’s proclamation of the emergency, but the PM’s decision to advise the Agong to approve Section 14 of the Emergency (Essential Powers) Ordinance 2021 that resulted in the suspension of Parliament during the emergency period. Under the circumstances, the PM’s advice is deemed to be in contravention of the law.

Anwar is seeking 10 declarations and court orders. One of them challenges constitutional provisions that stop the courts from deciding on the validity of emergency laws. Instead, Anwar wants the court to enable Parliament to continue to sit during the Emergency. The suit by Anwar, in his capacity as Opposition Leader of Parliament, was filed by the DAP’s Bukit Gelugor MP, Ramkarpal Singh, in the High Court in Kuala Lumpur.

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Apart from this suit, Anwar reportedly sent to the Agong on 19 January a list of of 99 MPs calling for the state of emergency to be lifted, and for a parliamentary sitting to be called. According to Amanah leader Mohamad Sabu, this was a decision taken by Pakatan Harapan.

Elected representatives from three states have filed a suit as well. They are Amanah’s Salahuddin Ayub, who is the Johor state assembly member for Simpang Jeram and Pulai MP; PKR’s Johari Abdul, the Kedah state assembly member for Gurun; and the DAP’s Aziz Bari, the Perak assembly member for Tebing Tinggi. The suit was also filed in the Kuala Lumpur High Court on 26 January.

The three elected representatives are seeking a judicial review of the government’s decision to seek an emergency proclamation and the suspension of Parliament. Unlike the other two suits, it also focuses attention on the suspension of the state legislative assemblies as well.

Specifically, the trio are challenging Sections 11, 14 and 15 of the Emergency Ordinance on the grounds that the provisions are “unnecessary, irrational, unreasonable and disproportionate” as the movement control order and its variations and existing laws are already enough to control the pandemic.

They argue that the suspension of Parliament and the state assemblies stops them from carrying out their constitutional functions of supervising and providing checks and balances on the executive arm of the government. They point out that the federal and state governments can now exercise their executive functions without having to be accountable or to answer to Parliament and the state assemblies.

So, they have asked the courts to order the PM and the government to present the emergency declaration and the Emergency Ordinance in Parliament for lawmakers to scrutinise.

A third suit, filed on 18 January, is by former Umno leader Khairuddin Abu Hassan. In his originating summons, Khairuddin claims that Muhyiddin Yassin does not have the legitimacy to advise the Agong to declare an emergency.

He believes the (former) Prime Minister had lost his majority on 9 January when Umno’s Machang MP withdrew his support for Muhyiddin. Yet Muhyiddin saw and offered advice to the Agong on 11 January.

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Under the circumstances, Khairuddin is asking the courts to determine whether Muhyiddin’s advice to the Agong to proclaim an emergency when the PM no longer commanded a parliamentary majority is valid.

He also wants the court to declare whether the suspension of both Houses of Parliament by a prime minister who no longer enjoys majority support is constitutional.

For Khairuddin, the situation that has resulted is tantamount to a “constitutional crisis”.

A fourth suit was filed in October 2020 by lawyer Syed Iskandar Syed Jaafar against the Malaysian government asking the court to decide on two constitutional matters, namely:

  • whether the Agong has unfettered discretion to not declare an Emergency despite the advice of the PM or cabinet, and
  • whether the 1981 law that added in the provision to block the court’s review of emergency laws is against the basic structure of the Federal Constitution.

You will recall that Muhyiddin had already requested the Agong to declare an emergency last October. This request, it was rumoured online and over social media, was refused by the Agong.

Hence this suit was filed in the wake of that exchange between the PM and the Agong. Interestingly, several individuals, including MP Dr Mahathir Mohamad, have since applied to be allowed to join Syed Iskandar’s lawsuit.

Finally, a petition prepared by the Jawatankuasa Merayu Penamatan Proklamasi Darurat, signed by MP Khalid Samad as the chair of the sponsors of the petition, is circulating online.

The petition submits that the declaration of an Emergency is not legitimate because it was advised by the PM, who had no majority in Parliament at the time. Accordingly, Muhyiddin had no right to act as prime minister and had no right to advise the Agong.

The petition also highlights that the state of emergency will drive away investors from the country – which will jeopardise the national economy and the wellbeing of the people. The emergency also disallows Parliament and the state assemblies from playing their roles, and this could lead to a dictatorship. The petition adds that the state of emergency is simply to allow the prime minister to hold on to power rather than to fight the pandemic.

Francis Loh
Co-editor, Aliran newsletter
3 February 2021
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