King’s emergency proclamation, ordinances cannot be challenged

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

(FMT) – The High Court has ruled that any challenge made against the Yang di-Pertuan Agong’s emergency proclamation and the 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.

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

Earlier, the judge allowed the attorney-general’s objection against leave for judicial review sought by three elected representatives who are challenging the suspension of Parliament and the state legislatures.

This is the first of five cases where the applicants, Salahuddin Ayub (Pulai MP), Johari Abdul (Sungai Petani MP) and Abdul Aziz Bari (Tebing Tinggi assemblyman in Perak), have failed to cross the low threshold to have the merit of their complaints heard.

Kamal said the question arose whether the merits of the King’s decrees could be decided at the leave stage or if it must be after leave was given.

“I am of the view that the issue can be decided at the leave stage,” he said.

The judge said it was his considered opinion that the three applicants had failed to cross the hurdle for the judicial review test.

“It is clear that there is no arguable case for the applicants. Therefore, this application for leave is frivolous,” he added.

On whether the ouster clause of Article 150(8), which had the effect of ousting the jurisdiction of the court was unconstitutional, Kamal said his answer was in the negative.

The judge said there was nothing in the constitution that imposed a legal duty on the prime minister, the first respondent in this action, to act in the manner dictated by the applicants.

Salahuddin, Johari and Aziz, among others, asked for a declaration that Prime Minister Muhyiddin Yassin was under a constitutional duty under Article 150(3) to advise the King to summon Parliament for the proclamation and ordinances to be laid before the Dewan Rakyat and Dewan Negara so as to be passed.

Government lawyers from the Attorney-General’s Chambers (AGC) argued that Articles 150(6) and (8) of the Constitution removed the jurisdiction of the courts on such matters and therefore leave ought not be given.

However, lawyers for the three have responded that the threshold for leave to begin judicial review proceedings to be granted was very low at this stage.

Gurdial Singh Nijar, Christopher Leong and Abdullah Abdul Rahman represented Salahuddin, Johari and Aziz.

Appearing for the AGC were Suzana Atan, S Narkunavathy, Ahmad Hanir Hambaly @ Arwi and Mazlifah Ayob.

Lawyer Abdul Rashid Ismail held a watching brief for the Malaysian Bar.

Similar legal challenges, which have been filed against the government and Muhyiddin, are scheduled to be heard in the High Court this month and in April.

Those who have filed the challenges are opposition leader Anwar Ibrahim, Pasir Gudang MP Hassan Abdul Karim, former PPBM leader Khairuddin Abu Hassan and a group of non-governmental organisations.

In an immediate response, Gurdial said he would take instruction from his clients on whether to appeal today’s ruling.