Anwar asks Federal Court to decide whether courts can review PM’s advice to Agong to make Emergency laws to suspend Parliament

A general view of the Federal Court in Putrajaya December 14, 2020. — Picture by Yusof Mat Isa
A general view of the Federal Court in Putrajaya December 14, 2020. — Picture by Yusof Mat Isa

KUALA LUMPUR, Feb 8 — PKR president Datuk Seri Anwar Ibrahim is now seeking to ask the Federal Court to decide whether the courts have the power to review the prime minister’s advice to the Yang di-Pertuan Agong to suspend Parliament under an Emergency law.

Anwar’s lawyer Ramkarpal Singh said that his client had this morning filed an application in the High Court, to refer four questions of law to the Federal Court.

Anwar’s application today is part of his lawsuit filed on January 25 in the High Court against the prime minister and the government to challenge Tan Sri Muhyiddin Yassin’s advice to the Yang di-Pertuan Agong to make the Emergency law to suspend Parliament.

His application today seeks for the High Court to first refer the four questions to the Federal Court before the High Court hears his lawsuit, and to suspend proceedings at the High Court until the Federal Court decides on the four questions.

“I am of the view the questions raised above ought to be decided by the Federal Court and having regard to the urgency of the matter, particularly since Parliament is now suspended, I have also filed a certificate of urgency for the matter to be heard soonest,” Ramkarpal, who is Bukit Gelugor MP and DAP national legal bureau chairman, said in a statement today.

In Anwar’s application filed today, the four questions of law include whether the Muhyiddin-led Cabinet’s decision to give advice or its advice to the Yang di-Pertuan Agong to suspend Parliament is subjected to the Federal Constitution’s Article 150 which contains ouster clauses. The ouster clauses includes provisions ousting the courts’ powers to review Emergency laws.

The second question is whether the Muhyiddin-led Cabinet’s decision to give advice or its advice given to the Yang di-Pertuan Agong to suspend Parliament is reviewable by the courts.

The third question is whether the Malaysia Act 1963’s Section 39(2), Section 15(d) of the Constitutional (Amendment) Act 1981, the Federal Constitution’s Article 150(6) and Article 150(8) are inconsistent or in contravention to the Federal Constitution’s Articles 4, 5, 8 and 121(1).

Section 39(2) and Section 15(d) resulted in the enactment of Article 150(6) and Article 150(8) in their current form. For example, Article 150(8) — an ouster clause which removes the court’s powers to decide on challenges on the validity of Emergency laws — was added into the Federal Constitution in 1981 by Section 15(d) and came into effect on May 15, 1981.

The fourth question is whether the courts’ inherent jurisdiction — including the powers of review in relation to procedure — can be completely inhibited or ousted by the legislature.

In court documents sighted by Malay Mail, Anwar explained that the main issue in his lawsuit at the High Court was whether the Muhyiddin-led Cabinet’s advice or decision to give advice — to make Section 14 of the Emergency (Essential Powers) Ordinance 2021 — which resulted in Parliament’s suspension — is subjected to the Federal Constitution’s Article 150(6) or Article 150(8).

Article 150(6) states that no provision of an Emergency Ordinance shall be invalid if it is inconsistent with the Federal Constitution, while Article 150(8) among other things says that the courts have no jurisdiction to decide on the validity of Emergency proclamations or Emergency Ordinances.

While noting that both Article 150(6) and Article 150(8) appear to directly exclude the courts’ jurisdiction from entertaining or deciding any question related to Emergency proclamations or Emergency Ordinances, Anwar pointed out that his questions were on the Cabinet’s decision to give advice or actual advice given in relation to the 2021 Emergency Ordinance which resulted in Parliament’s suspension, instead of on the Emergency Ordinance itself.

Anwar argued that the ouster clauses in Article 150(6) and Article 150(8) appear not to apply to his situation, where he was challenging advice given to the Emergency laws, instead of the Emergency laws themselves.

He said it was ambiguous whether the ouster clauses in Article 150(6) and Article 150(8) include the advice given by Muhyiddin and his Cabinet, noting that this issue has never been decided by the courts and will require a clear pronouncement by the Federal Court.

He also said both Section 39(2) and Section 15(d) must be questioned and challenged because these provisions resulted in the enactment of Article 150(6) and Article 150(8) in the Federal Constitution.

Anwar said he believes that it is fit and proper for the four questions of law to be referred to the Federal Court for a final decision, as it has a direct effect on issues raised in the lawsuit before the High Court.

Anwar also wanted the four questions of law to be referred to the Federal Court, as he said Article 150(6) and Article 150(8) which appears to completely oust or inhibit the courts’ jurisdiction is inconsistent with the Federal Constitution’s basic structure.

On January 25, Anwar filed his lawsuit at the High Court against the prime minister and government, seeking to cancel the alleged unlawful advice by Muhyiddin and his Cabinet to the Yang di-Pertuan Agong to make the allegedly unconstitutional Section 14 provision in the Emergency Ordinance which suspended Parliament, and to have the courts compel Muhyiddin and the government to advise the Agong to revoke Section 14.

As part of his lawsuit, Anwar had challenged constitutional provisions that stop the courts from deciding on the validity of Emergency laws, seeking court orders aimed at cancelling the suspension of Parliament during the Emergency, and aimed at enabling Parliament to continue to sit during the Emergency.

There are now at least three other lawsuits filed in court in relation to the Emergency or Emergency laws, including Datuk Seri Khairuddin Abu Hassan filing on January 18 a lawsuit against Muhyiddin and the Malaysian government to ask the courts to decide whether a prime minister who no longer has the majority support of MPs in the Dewan Rakyat can still advise the Yang di-Pertuan Agong to proclaim an Emergency, or whether such a prime minister can suspend Parliament sittings.

On January 26, three Pakatan Harapan lawmakers had filed a lawsuit against Muhyiddin and the government to challenge the Emergency Ordinance provisions which suspended Parliament and state legislative assemblies and to challenge the constitutional provisions that block the courts from invalidating Emergency laws.

On February 2, seven civil society groups including Bersih 2.0 had jointly filed a lawsuit against the prime minister and the Malaysian government, to challenge the Emergency Ordinance’s Section 14 which suspends Parliament as well as the ousting of the courts’ powers to review Emergency laws, among other things.

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