King’s Emergency proclamation, ordinances cannot be questioned, says court

“This has shut the door on the courts to hear any challenge on the Emergency and ordinances”

(FMT) – The Court of Appeal today dismissed the appeals of five elected representatives who challenged the proclamation of emergency and ordinances issued by the Yang di-Pertuan Agong early this year to fight the Covid-19 pandemic.

A three-member bench, chaired by Has Zanah Mehat, said the court was not “clothed with the jurisdiction” to entertain the judicial review applications even if leave was granted to the applicants.

“It will be an exercise in futility as the court is barred under Article 150 (8) of the Federal Constitution from questioning the King’s decision to proclaim the Emergency and the ordinances,” said Has Zanah, who delivered the broad grounds of the ruling.

The other judges were Vazeer Alam Mydin Meera and Ahmad Zaidi Ibrahim.

Has Zanah said the three judges,who had earlier refused the leave applications for judicial review, did not commit any error of law.

Has Zanah said the power of the courts was not based on the opinions of political thinkers.

“The jurisdiction of the courts can only be conferred by law, except on the question of its inherent powers,” she said.

She said Articles 150(8) and (9) touched on the King’s power to proclaim Emergency and promulgate ordinances and Parliament had excluded judicial review applications on such matters.

“This has shut the door on the courts to hear any challenge on the Emergency and ordinances,” she said, adding that a constitutional amendment in 1981 to insert Clause 8 was valid.

Has Zanah said the wording in Clause 8 was very clear to insulate the whole process of judicial scrutiny on any grounds.

“The amendment is valid and enforceable as the constitutional amendment process was followed, including obtaining two-thirds support of MPs,” she said, adding that the constitution is the supreme law of the land and the courts were bound by its clear and express provisions.

Opposition leader and Port Dickson MP Anwar Ibrahim and Pasir Gudang MP Hassan Karim had filed separate applications in the Kuala Lumpur and Johor Bahru High Courts.

Sallahuddin Ayub (Pulai MP), Johari Abdul (Sungai Petani MP) and Tebing Tinggi (Perak) assemblyman Abdul Aziz Bari had filed a joint application in Kuala Lumpur.

They said the advice given to the King by then prime minister Muhyiddin Yassin and his Cabinet was unlawful and subject to a legal challenge.

Anwar’s complaint was that Muhyiddin’s administration could have relied on the movement control order and the Prevention and Control of Infectious Diseases Act to combat the Covid-19 pandemic instead of resorting to Emergency ordinances.

The rest also challenged the constitutionality of the emergency proclamation and suspension of Parliament and the state legislative assemblies.