KUALA LUMPUR (Jan 9): The High Court has set April 29 to deliver its decision on the validity of the emergency proclamation issued in 2021 during the Covid-19 pandemic.
High Court judge Datuk Aliza Sulaiman will rule on four applications brought separately by two lawmakers, civil group Bersih, and the Malaysian Bar to challenge the emergency proclamation. The applications named then-prime minister Tan Sri Muhyiddin Yassin and the government as respondents. The judge, who decided to hear the cases together as they deal with the same issue, set the date following lengthy oral arguments on Friday.
In essence, the applicants argue that the emergency proclamation was unconstitutional and that the courts must weigh in to set a legal precedent to prevent similar occurrences in the future.
The respondents, however, countered that the court orders sought by the applicants are now moot. They argue that because the proclamation was revoked in late 2021, the applications serve no practical utility.
These judicial review applications were first filed in 2021. Previously, both the High Court and the Court of Appeal had dismissed the applications.
But in 2024, the Federal Court cleared the path for these challenges. In June 2024, the apex court ruled that the Malaysian Bar and Bersih’s challenges must be heard by the High Court. This was followed in July 2024 by a five-member panel led by then-Chief Justice Tun Tengku Maimun Tuan Mat, which granted leave to the lawmakers — Pasir Gudang Member of Parliament Hassan Abdul Karim (PKR) and Tebing Tinggi assemblyman Abdul Aziz Bari (DAP) — remitting their case back to the High Court for a full hearing on the merits.
Public interest vs academic mootness
On Friday, senior lawyer Datuk Dr Gurdial Singh Nijar, appearing for the lawmakers, argued that the issue is far from academic.
"This is an issue related to the authorities and the Constitution. This could arise again in future. What should be adhered to and the consequence if it is not fulfilled [...] is a matter of public interest which has to be adjudicated and [given] careful consideration by this court," he said.
He highlighted the applicants' contention that the emergency proclamation was never tabled in Parliament for deliberation, as required by law.
"Parliament is the house that represents the will of the people. We cannot allow the executive of the day to surpass the democratic ethos enshrined in the Constitution," he argued.
Senior federal counsel Shamsul Bolhassan countered that since the emergency proclamation ended, Parliament had met on July 26, 2021, debated the matter, and subsequently revoked the order.
"The application is academic. Parliament has set and annulled the emergency ordinance. Whatever sought by the applicants has already been achieved. Therefore, the application before the court doesn't serve any utility," he argued.
The emergency proclamation was originally consented to by then-Yang di-Pertuan Agong Al-Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah on Jan 12, 2021, following the advice of Muhyiddin, in an effort to contain the Covid-19 pandemic.