Govt seeks to strike out lawsuit on Agong’s refusal to declare Emergency on Oct 25, says waste of court’s time

PUTRAJAYA, Jan 21 — The Malaysian government today filed an application to ask the High Court to throw out a constitutional challenge on the Yang di-Pertuan Agong’s discretion to not declare an Emergency, claiming that such a lawsuit is a waste of time.

In its striking out application, the government wants the High Court in Kuala Lumpur to dismiss the lawsuit by lawyer Syed Iskandar Syed Jaafar, on the grounds that the lawsuit is allegedly “scandalous, frivolous and vexatious”, and that it is allegedly an “abuse of the court’s process.”

Also filed today is an affidavit by Solicitor General Datuk Abdul Razak Musa of the Attorney General’s Chambers to support the federal government’s bid to strike out the lawsuit.

In Syed Iskandar’s lawsuit filed on October 30, 2020 against the Malaysian government, he posed two questions of constitutional law for the court to decide.

Abdul Razak in his affidavit, however, argued that Syed Iskandar had failed to identify his rights that had been violated or the losses that he had personally suffered as a result of the Yang di-Pertuan Agong’s October 25, 2020 decision to not to declare an Emergency nationwide.

Abdul Razak said Syed Iskandar had also failed to indicate what his legal rights were in any court decisions on the constitutional questions, or to show the controversial issue between Syed Iskandar and the Malaysian government that would need the court to decide on, or to show that there was a breach of his constitutional right which would make a court decision necessary.

Abdul Razak argued that Syed Iskandar’s lawsuit is not seeking any relief to be granted by the courts that would be beneficial to anyone.

“The plaintiff’s (Syed Iskandar) application only contains general and academic questions that will make the hearing of this case something that is futile and wasting the court’s time,” he said in his affidavit when explaining why he felt the lawsuit should be struck out by the court.

Arguing that the lawsuit is merely an academic exercise, Abdul Razak said that this is because Syed Iskandar had only asked for the court’s answers to the two constitutional questions, and that the court’s decision on those questions would not have any effect on the Agong’s October 25 decision to not declare an Emergency.

Abdul Razak also cited Federal Constitution’s Article 150(8) as a provision that excludes the court from entertaining or deciding on any applications to dispute or challenge any decisions made by the Yang di-Pertuan Agong regarding Emergency declaration.

Among other things, Article 150(8) states that the Yang di-Pertuan Agong’s satisfaction — that a grave emergency exists or that there is imminent danger of such grave emergency which would be required for an Emergency proclamation — is final and conclusive, and shall not be challenged or called in question in court.

Article 150(8) also states that no court shall have jurisdiction to entertain or determine any application or question about the validity of an Emergency proclamation or any ordinances made under an Emergency.

About the two lawsuits on Emergency declarations

In his lawsuit filed last October, Syed Iskandar had noted the Yang di-Pertuan Agong’s October 25 refusal to declare an Emergency as sought by the prime minister on October 23, describing this as the ruler’s “rejection of the prime minister’s advice” for an Emergency to be declared.

Syed Iskandar had in court papers claimed that the Yang di-Pertuan Agong had exercised his functions in a manner inconsistent with the Federal Constitution’s Article 40 and Article 150 when declining to act on the advice of the prime minister or Cabinet.

In his lawsuit, Syed Iskandar had posed two questions of constitutional and public importance for the court to decide, including whether the Yang di-Pertuan Agong has an “unfettered discretion” not to declare an Emergency despite the advice of the prime minister or Cabinet for an Emergency declaration, based on a true construction of Article 40 and Article 150 of the Federal Constitution.

The second question was on whether Act 514 (Occupational Safety and Health Act 1994) which amended the Federal Constitution’s Article 150 by adding clauses (8) and (9) is violative of the basic structure of the Federal Constitution, when the Federal Constitution’s Article 4(1) is taken into account.

Others have since filed to be part of Syed Iskandar’s lawsuit against the government, with the High Court reportedly fixing February 18 to hear four intervener applications by Malaysian Muslim Lawyers Association secretary-general Ridha Abdah Subri; lawyer Mohd Khairul Azam Abdul Aziz and Malcolm Fernandez; Nazira Abdul Rahim; and Centre For a Better Tomorrow.

On January 12, a joint intervener application was also filed by Pejuang chairman and Langkawi MP Tun Dr Mahathir Mohamad and four other lawmakers from his party (Pejuang president and Jerlun MP Datuk Seri Mukhriz Mahathir, Pejuang secretary-general and Kubang Pasu MP Datuk Amiruddin Hamzah, Sri Gading MP Datuk Shahruddin Md Salleh, as well as Pejuang deputy president and Dewan Negara lawmaker Datuk Marzuki Yahya). They also wanted to join Syed Iskandar’s lawsuit.

Months after the October 2020 events and the filing of Syed Iskandar’s lawsuit, the Yang di-Pertuan Agong on January 12 announced an Emergency on Malaysia, just a day after Prime Minister Tan Sri Muhyiddin Yassin presented the ruler with the Cabinet’s advice for an Emergency to be declared.

The Proclamation of Emergency nationwide was gazetted on January 12 and deemed to be in effect from January 11 to August 1, while the Emergency (Essential Powers) Ordinance 2021 — which suspends all elections and the sitting of Parliament — was gazetted on January 14 and also deemed to have taken effect from January 11 onwards.

Separately, Dr Mahathir loyalist Datuk Seri Khairuddin Abu Hassan on January 18 filed a lawsuit against Tan Sri Muhyiddin Yassin and the Malaysian government, in his bid to have the courts 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 can still suspend Parliament sittings.

In the four constitutional questions posed by Khairuddin in the lawsuit which he described a “public interest” case, he had sought to challenge the validity and constitutionality of the prime minister’s advice and the Cabinet’s proposal to the Agong to declare Emergency when a prime minister no longer has majority support in Parliament, and to also challenge the validity and constitutionality of the suspension of Parliament sittings until August 1 by a prime minister without majority support.

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