Halfway into Malaysia's 2021 Emergency, how far have the seven Emergency-linked lawsuits progressed?

·12-min read
About a hundred Malaysian youths gathered in front of the Parliament of Malaysia building, calling for Parliament to immediately reconvene and end the state of Emergency, April 30, 2021. ― Picture by Hari Anggara
About a hundred Malaysian youths gathered in front of the Parliament of Malaysia building, calling for Parliament to immediately reconvene and end the state of Emergency, April 30, 2021. ― Picture by Hari Anggara

KUALA LUMPUR, May 17 — Malaysia is already slightly more than halfway into its nationwide Emergency which started on January 11 and is scheduled to end on August 1, a period where Parliament has been suspended and is unable to carry out its usual function of holding the federal government accountable for its actions.

Since the Emergency was declared, civil society and politicians have filed seven lawsuits in court, mostly aimed at challenging the suspension of Parliament throughout the Emergency.

With less than three months left to the end of the 2021 Emergency on August 1 (if it is not extended or lifted earlier), four of these lawsuits filed via judicial review application have been denied leave to be heard by the High Court. Out of the four, the lawyers for the three have already filed appeals to the Court of Appeal to enable the lawsuits to be heard in the High Court.

Here is a quick look by Malay Mail at the full list in chronological order of lawsuits that are known to have been filed, based on news reports and court documents:

1. Khairuddin’s lawsuit asking if a PM who has lost majority support could suspend Parliament and advise for Emergency declaration

Who is suing who: Datuk Seri Khairuddin Abu Hassan v Tan Sri Mahiaddin Md. Yassin, Government of Malaysia

Lawsuit filed: January 18, via originating summons

What the lawsuit involves: In the lawsuit, politician Khairuddin asked the court to decide on four questions of law, such as whether advice —-- by a prime minister who had lost the confidence of the majority of the members of the Dewan Rakyat — to propose to the Yang di-Pertuan Agong for a declaration of Proclamation of Emergency is invalid and unconstitutional.

One of the questions asked was whether the suspension of Parliament sittings up to August 1, 2021 by a prime minister who has lost the confidence of the majority of the Dewan Rakyat members is invalid and unconstitutional.

On February 19, Khairuddin filed an application to refer the same four legal questions to the Federal Court.

Status: On June 23, High Court judge Datuk Noorin Badaruddin is reportedly scheduled to hear both the government’s application to strike out the lawsuit and Khairuddin’s application to refer the legal questions to the Federal Court.

PKR president Datuk Seri Anwar Ibrahim speaking during a press conference at Eastin Hotel in Petaling Jaya, March 16, 2021. ― Picture by Hari Anggara
PKR president Datuk Seri Anwar Ibrahim speaking during a press conference at Eastin Hotel in Petaling Jaya, March 16, 2021. ― Picture by Hari Anggara

2. Anwar’s challenge against PM’s advice for Parliament’s suspension

Who is suing who: Datuk Seri Anwar Ibrahim v Tan Sri Muhyiddin Yassin (PM), Government of Malaysia

Lawsuit filed: January 25, via judicial review application

What the lawsuit involves:

PKR president Anwar sought for 10 court orders, including a declaration that the Cabinet under Muhyiddin had unlawfully, unconstitutionally and invalidly given advice to the Yang di-Pertuan Agong to make the Emergency (Essential Powers) Ordinance 2021’s Section 14 which suspends Parliament, and declarations that Section 14 itself and the resulting suspension of Parliament during the Emergency as unlawful.

Anwar is also seeking a court order to quash Muhyiddin and the government’s decision to advise the Agong to promulgate Section 14, and a court order to direct Muhyiddin and the government to advise the Agong to revoke Section 14.

In other words, the court orders sought by Anwar are all aimed at cancelling the suspension of Parliament during the Emergency, and aimed at enabling Parliament to continue to sit during the Emergency.

Anwar’s lawsuit is not about challenging the Agong’s powers or actions in declaring the Emergency or the Emergency Ordinance, but is a challenge against the alleged flawed advice by Muhyiddin and his Cabinet to the King on the Emergency Ordinance.

As part of his lawsuit, Anwar had also filed an application to refer four questions of law to the Federal Court, but the High Court decided to hear his leave application for judicial review first before hearing the bid to ask the Federal Court such questions.

Status: On April 22, Datuk Seri Mariana Yahya who was sitting as High Court judge dismissed leave for Anwar’s judicial review application, citing reasons such as the prime minister’s advice to the Agong to promulgate Emergency Ordinance as not being amenable to judicial review.

The High Court also ruled that it did not have the jurisdiction to hear the judicial review relating to an Emergency proclamation and Emergency Ordinances, due to the ouster clauses of Article 150(6) and Article 150(8) of the Federal Constitution -- which respectively provides that no Emergency Ordinance provision would be invalid if inconsistent with the Federal Constitution and that no courts have the jurisdiction to decide on Emergency Ordinances’ validity.

When contacted, Anwar’s lawyer Sangeet Kaur Deo told Malay Mail that an appeal was filed on April 27, and that the appeal will be up for case management on July 27 at the Court of Appeal.

Datuk Salahuddin Ayub is pictured at Parliament in Kuala Lumpur October 21, 2019. ― Picture by Yusof Mat Isa
Datuk Salahuddin Ayub is pictured at Parliament in Kuala Lumpur October 21, 2019. ― Picture by Yusof Mat Isa

3. Three Pakatan Harapan lawmakers’ challenge against suspension of Parliament, state legislative assemblies during Emergency

Who is suing who: Datuk Seri Salahuddin Ayub, Datuk Johari Abdul, Abdul Aziz Bari v PM Tan Sri Mahiaddin Md Yasin, Government of Malaysia

Lawsuit filed: January 26, via judicial review application

What the lawsuit involves: Both Parti Amanah Negara’s Salahuddin and PKR’s Johari have the dual roles of being an MP and a state assemblyman, while DAP’s Abdul Aziz is a state assemblyman. They hold these positions in the states of Johor, Kedah and Perak respectively.

In their lawsuit, the three PH lawmakers are seeking nine court orders, including to have the Emergency Ordinance’s Section 14 and Section 15 — which suspends Parliament sittings and state legislative assemblies during the Emergency —declared invalid and unconstitutional.

They also sought to have Article 150(8) which states that no courts have no power to decide on the validity of Emergency Ordinances — declared unconstitutional and invalid, and for the courts to order the prime minister to advise the Agong to summon a Parliament meeting to allow for scrutiny of the Emergency proclamation and Emergency Ordinance as required by the Federal Constitution.

In short, they are seeking to ultimately restore Parliament’s scrutiny of the government’s actions during the Emergency and to also have the Emergency ordinance presented before Parliament, and to restore the courts’ powers to scrutinise Emergency proclamations and Emergency ordinances.

Status: On March 11, High Court judge Datuk Ahmad Kamal Md. Shahid dismissed the three lawmakers’ application for leave for judicial review, due to the ouster clause of Article 150(8) in the Federal Constitution which the judge said shuts the court’s doors to any challenges against Emergency ordinances.

On the same day, the three lawmakers filed an appeal at the Court of Appeal against the refusal of leave to hear their lawsuit. The appeal will come up for case management next on June 1.

Pasir Gudang MP Hassan Abdul Karim speaks during a press conference at Parliament in Kuala Lumpur August 11,2020. — Picture by Miera Zulyana
Pasir Gudang MP Hassan Abdul Karim speaks during a press conference at Parliament in Kuala Lumpur August 11,2020. — Picture by Miera Zulyana

4. PKR MP’s challenge in Johor against Parliament’s suspension during Emergency

Who is suing who: Hassan Abdul Karim v PM Tan Sri Mahiaddin Md. Yasin, Government of Malaysia

Lawsuit filed: January 27, via judicial review application. (This was filed in the High Court in Johor Bahru, unlike all other Emergency-related lawsuits that were filed in the High Court in Kuala Lumpur.)

What the lawsuit involves:

In the lawsuit, Pasir Gudang MP Hassan had sought for nine specific court declarations and court orders, which are the same as those sought by the three Pakatan Harapan lawmakers in their lawsuit.

As part of the lawsuit, Hassan had on March 29 also filed an application to refer four questions of law to the Federal Court.

The legal questions revolved around whether Article 150(8) stops the courts from examining or reviewing any alleged breach of the Federal Constitution, and whether Parliament can be suspended in light of constitutional provisions on Parliament’s role during an Emergency, as well as whether Article 150(6) — which states that no Emergency ordinance provisions would be invalid despite inconsistencies with the Federal Constitution — would prevent the examination of whether Emergency ordinance provisions are valid.

Abraham Au, one of Hassan’s lawyers, confirmed to Malay Mail that the High Court had decided to hear the leave for judicial review application first before hearing the bid to refer questions to the Federal Court.

Status: On April 26, Judicial Commissioner Evrol Mariette Peters of the High Court in Johor Bahru dismissed the application for leave for judicial review, citing Article 150(8) in saying that the court does not have jurisdiction to hear the lawsuit. (With leave dismissed, the application to refer questions to the Federal Court was not heard.)

Au said that an appeal was filed on the same day on April 26. The appeal is scheduled for case management at the Court of Appeal on July 26.

Bersih 2.0 chairman Thomas Fann speaks during a press conference in Kuala Lumpur November 29, 2019. — Picture by Choo Choy May
Bersih 2.0 chairman Thomas Fann speaks during a press conference in Kuala Lumpur November 29, 2019. — Picture by Choo Choy May

5. Bersih 2.0, its chairman and six other civil societies’ challenge against Parliament’s suspension during Emergency

Who is suing who: Bersih 2.0, Malaysian Academic Movement (Gerak), Aliran, Suara Rakyat Malaysia (Suaram), the Kuala Lumpur and Selangor Chinese Assembly Hall (KLSCAH), Save Rivers, the Centre for Independent Journalism (CIJ), Bersih 2.0 chairman Thomas Fann v Tan Sri Mahiaddin Md. Yasin (as PM), Government of Malaysia

Allowed interveners: The High Court on April 1 allowed three PAS lawmakers — Ahmad Fadhli Shaari, Khairil Nizam Khirudin, Mohd Apandi Mohamad —- and two PKR lawmakers — Mohd Yusmadi Mohd Yusoff and Datuk Seri Shamsul Iskandar Mohd Akin — to join the lawsuit as interveners.

Lawsuit filed: February 2, via originating summons.

What the lawsuit involves: In the lawsuit, Bersih 2.0 and the other civil society groups are seeking three declarations, as well as for the court to answer four constitutional and legal questions.

The three declarations sought are for the entire Emergency Ordinance or its Section 14 provision which suspends Parliament during the Emergency to be declared unlawful, unconstitutional and invalid, and that an amendment in 1981 to the Federal Constitution — which added in the Article 150(8) clause preventing courts from deciding on Emergency ordinances’ validity — is unconstitutional.

As part of the lawsuit, Bersih 2.0 and the civil society groups had on March 17 applied to refer six constitutional questions to the Federal Court, revolving around issues such as the validity of the 1981 constitutional amendment and the Section 14 provision, and whether the courts can examine the validity of Emergency Ordinance provisions despite Article 150(8).

The two PKR lawmakers had on April 8 filed a separate application to refer four questions of law to the Federal Court, similarly involving issues such as the validity of the 1981 amendment and the Section 14 provision, and the effect of Article 150(8).

Status: The High Court in Kuala Lumpur has fixed July 22 to hear the two applications to refer legal questions to the Federal Court. High Court judge Datuk Ahmad Kamal Md. Shahid will be hearing these two applications before he deals with the actual lawsuit.

Datuk Seri Khairuddin Abu Hassan is pictured at the Kuala Lumpur High Court April 27, 2021. — Picture by Yusof Mat Isa
Datuk Seri Khairuddin Abu Hassan is pictured at the Kuala Lumpur High Court April 27, 2021. — Picture by Yusof Mat Isa

6. Khairuddin’s challenge against AG’s alleged failure to advise PM on alleged loss of majority before an audience with King on Emergency

Who is suing who: Datuk Seri Khairuddin Abu Hassan v Tan Sri Idrus Harun as attorney-general

Lawsuit filed: February 3, via judicial review application.

What the lawsuit involves: In this lawsuit, Khairuddin is seeking six declarations and court orders, including an order to compel Idrus to notify Muhyiddin that the latter had lost majority support as prime minister after two Umno MPs withdrew their support on January 9 and January 12, and a declaration that Idrus had failed to advise the Yang di-Pertuan Agong that Muhyiddin had lost majority support on January 9 and could not provide advice as prime minister.

Among other things, Khairuddin was also seeking a declaration that Idrus had acted unconstitutionally when accompanying Muhyiddin on January 11 to seek the Agong’s consent to declare Emergency as Muhyiddin allegedly did not have the majority to be prime minister.

Status: On April 27, High Court judge Datuk Ahmad Kamal Md. Shahid dismissed Khairuddin’s application for leave for judicial review, ruling that he does not have locus standi or legal standing to file the lawsuit and that he has not shown how he had been adversely affected. Khairuddin plans to file an appeal.

7. Malaysian Bar’s challenge against Emergency Ordinances’ provisions

Who is suing who: Malaysian Bar v Prime Minister Tan Sri Mahiaddin Mohd Yasin, Government of Malaysia

Lawsuit filed: April 8, via originating summons

What the lawsuit involves:

In its lawsuit, the Malaysian Bar is seeking 25 declarations and court orders, including asking the courts to declare several Emergency Ordinances’ provisions as unconstitutional

The provisions in the Emergency Ordinances that the Malaysian Bar wants to be invalidated include the initial January 14 Emergency Ordinance’s Section 14 and Section 15 (which suspends Parliament and state legislative assemblies) and Section 11 (which entrenches the federal and state governments) and Section 18 (which allows the Emergency Ordinance to prevail if inconsistent with any written laws) and Section 5 (where the assessment of the government’s compensation for temporary takeover of property or demand of use of resources cannot be challenged in court); as well as the March 11 Emergency Ordinance’s Section 4 where publishing or spreading fake news is a crime; and the March 31 Emergency ordinance amendments that effectively suspends procedural safeguards and Parliament’s scrutiny over the use of public funds.

Among other things, the Malaysian Bar also asked for the courts to declare Article 150(8)(b) — which stops the courts from deciding on the validity of Emergency proclamations and Emergency Ordinances — as unconstitutional and invalid.

The Malaysian Bar also wanted the courts to order the prime minister to present the Emergency proclamation and Emergency Ordinances to Parliament.

On May 7, the Malaysian Bar filed an application to refer 22 constitutional and legal questions to the Federal Court to decide on before the High Court hears the lawsuit. These questions are the same as the declarations sought in the lawsuit.

Status: This case will come up for case management on May 19 before High Court judge Datuk Ahmad Kamal Md. Shahid.

Not included in this list is lawyer Syed Iskandar Syed Jaafar’s lawsuit filed in October 2020 against the Malaysian government, where he asked the courts to decide on two constitutional matters, including whether the Yang di-Pertuan Agong has unfettered discretion to not declare an Emergency. His lawsuit — where others such as Tun Dr Mahathir Mohamad has been allowed to join as interveners — is up for case management in the High Court on May 31.


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