Court cannot review King’s Emergency proclamation, says judge
Published on: Thursday, February 15, 2024
By:
FMT, V Anbalagan
The High Court ruled that it has no jurisdiction to review the King’s decision whether to proclaim an Emergency as the real remedy lies in the legislature.
Kuala Lumpur: The High Court has ruled that the Yang di-Pertuan Agong’s power to proclaim an Emergency is beyond review by the courts.
Justice Wan Ahmad Farid Wan Salleh said Article 150(8) of the Federal Constitution is an intrinsic part of the basic structure of the supreme law of the land.
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“Under this provision, the court has no jurisdiction to hear the application,” he said when delivering broad grounds of judgment to dismiss a suit by lawyer Syed Iskandar Syed Jaafar.
However, he made no order for costs.
The lawyer had asked the High Court to determine whether the King’s refusal to accept the prime minister’s advice to declare an Emergency in October 2020 could be challenged in court.
Wan Farid said Article 40(1) of the constitution required the King to act on the advice of the Cabinet.
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He also said the courts have always considered security matters to be of a “peculiar texture”.
“The Cabinet, being the executive arm of the government, possesses intelligence information on security matters that the courts do not have (access to),” he said.
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Therefore, he said, the Cabinet was in the best position to advise the King on such matters.
However, Wan Farid said, the exercise by the King of his power to proclaim an Emergency under Article 150 of the constitution was not justiciable.
He said although the ouster of the court’s jurisdiction may look harsh and unjust, the real remedy lies in the legislature.
He said Article 150(8) of the constitution does not violate the basic structure of the constitution and cannot be struck down under Article 4(1).
“On the contrary, any attempt by the court to intervene will offend the doctrine of separation of powers, which is part of the basic structure of the constitution,” he said.
Wan Farid also dismissed the government’s application to strike out the suit, which was brought by way of an originating summons.
The court had allowed 10 other parties to intervene in the proceedings.
They included former prime minister Dr Mahathir Mohamad, former Jerlun MP Mukhriz Mahathir, Amiruddin Hamzah (former Kubang Pasu MP), Shahruddin Salleh (former Sri Gading MP), former senator Marzuki Yahya, and lawyers Khairul Azam Abdul Aziz, Malcolm Fernandez and Nazirah Abdul Ghani.
Rights groups Centre for A Better Tomorrow and the Association of Muslim Lawyers were also allowed to intervene, while the Bar Council was granted the status of amicus curiae (friend of the court).
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