Lawyer objects to parties trying to intervene in emergency proclamation suit

(FMT) – A lawyer who is seeking court clarification on whether the Yang di-Pertuan Agong’s decision to refuse an emergency proclamation as advised by the prime minister is unconstitutional, is opposing intervener applications by five parties.

Syed Iskandar Jaafar al-Mahdzar’s counsel, R Kengadharan, said the reasons for the objection would be given in writing.

“The High Court has directed us to file an affidavit in response to the intervener applications on or before Dec 18,” Kengadharan told FMT after case management before judge Mariana Yahya today.

If necessary, the proposed interveners – the Muslim Lawyers Association, Centre For A Better Tomorrow and lawyers Mohd Khairul Azam Abdul Aziz, Malcolm Fernandez and Nazirah Abdul Rahim – can reply to Syed Iskandar’s affidavit by Jan 18.

Feb 16 has been set as the hearing date for the intervener application and also case management for Syed Iskandar’s originating summons.

The potential interveners want to be part of the hearing (originating summons) on grounds it was their constitutional right to be made parties, they have genuine interest to intervene and because of natural justice.

The lawyers said they have a legal interest and a higher right compared to ordinary members of the public to intervene.

Syed Iskandar posed two legal questions in his legal action filed on Oct 30:

  • Whether on a true construction of Articles 40 and 150 of the Federal Constitution, the King has an unfettered discretion not to declare an emergency despite the advice of the prime minister or the Cabinet, and
  • Whether an amendment to Article 150, by adding clauses (8) and (9), breached the basic structure of the constitution.

The lawyer said he believed the legal questions posed were important to uphold the rule of law and protect the constitution.

In an affidavit in support of the action, he said the King, in not accepting the advice of Prime Minister Muhyiddin Yassin or his Cabinet, did not perform his function in accordance with Articles 40 and 150.

On Oct 23, Muhyiddin advised the King to issue an emergency proclamation under Article 150 after the Cabinet agreed on the matter at a special meeting.

Two days later, after a special meeting among the Malay Rulers, the King decreed that an emergency proclamation in the entire, or part of, the country was not necessary.