Sunday 10 Dec 2023
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PUTRAJAYA (Feb 3): Prime Minister Datuk Seri Anwar Ibrahim is proceeding to challenge the legality of the emergency proclamation made by his predecessor Tan Sri Muhyiddin Yassin, which prevented the Parliament from convening during the Covid-19 pandemic.

Anwar’s counsel Sangeet Kaur Deo, when contacted, confirmed that Anwar, who is also Tambun Member of Parliament, is continuing with his appeal.

Similarly, four others — Domestic Trade and Cost of Living Minister Datuk Seri Salahuddin Ayub, who is also the MP for Pulai; Dewan Rakyat Speaker Datuk Johari Abdul; Pasir Gudang MP Hassan Abdul Karim and Tebing Tinggi assemblyman Abdul Aziz Bari — have confirmed they are also proceeding with the appeal, according to their counsel Datuk Dr Gurdial Singh Nijar.

Previously, the five failed in their bid to challenge the constitutionality of the emergency proclamation at the High Court; the High Court's dismissal of their application was also upheld by the Court of Appeal.

The Federal Court has on Friday (Feb 3) fixed April 14 as the next case management date of the appeal, said Gurdial.

On May 22, a three-member Federal Court bench led by Datuk Nalini Pathmanathan in a majority decision allowed leave (permission) for the full merits of the appeal to be heard.

Nalini, along with another Federal Court judge Datuk Vernon Ong Lam Kiat, ruled that leave should be granted as there are questions of law of public importance, and that there was a need to revisit the Court of Appeal’s decision.

Judge Datuk Zabariah Mohd Yusof, who read the minority decision, said Article 150(8) of the Federal Constitution clearly bars judicial scrutiny of legislation passed during the emergency period.

Salahuddin, Johari, Hassan and Abdul Aziz had posed two questions of law in their application:

  • Whether Article 150(8) of the Federal Constitution (which stipulates that the court has no jurisdiction, on any ground, to entertain questions on the validity surrounding the proclamation of emergency) and the interpretation of the said provision by the Federal Court in the decision of Datuk Seri Anwar Ibrahim vs the Public Prosecutor absolutely prevents the judiciary at the leave stage of judicial review from considering the validity of the decisions made under Article 150 in light of the decisions sighted in cases such as the SIS forum and Semenyih Jaya cases (whereby the court ruled that ouster clauses that do not give the court jurisdiction to look into matters are illegal)
  • Whether Article 150(6) and (8) of the Federal Constitution (which stipulates that no provision of any ordinance promulgated under this Article, or provision of any act of Parliament that is passed while a proclamation of emergency is in force and which declares that the law appears to Parliament to be required by reason of emergency, shall be invalid on the ground of inconsistency with any provision under the Federal Constitution) absolutely prevents the judiciary from constitutionally and statutorily reviewing the questions of whether the executive has exceeded its jurisdiction and ambit of power under Article 150 itself, when it enacted and advised the Yang di-Pertuan Agong to promulgate Sections 11(a)(b), 14 and 15 of the Emergency (Essential Powers) Ordinance following the decision in other court cases involving former Petaling Jaya MP Maria Chin Abdullah.

Meanwhile, the apex court decided to grant seven questions posed by Anwar in his challenge, which include:

  • Whether Articles 150(6) and 150(8) of the Federal Constitution is inconsistent with Articles 4, 8 and 121 of the Federal Constitution, and hence should be declared unconstitutional, null and void and of no effect
  • Whether the phrase “on any ground” of Article 150(8) of the Federal Constitution extends to the advice of the Cabinet to the Yang di-Pertuan Agong to proclaim an emergency and to promulgate emergency ordinance
  • Whether provisions in the Federal Constitution itself under Article 150(6) and (8) can be struck down as being inconsistent with Article 4(1) of the Federal Constitution.

Article 150 relates to the emergency proclamation made by the Yang di-Pertuan Agong. 

Article 4 deals with the Federal Constitution being the supreme law of the country; Article 8 stipulates that all persons are equal before the law; while Article 121 deals with the power of judiciary in the country.

Edited ByTan Choe Choe
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