A lawyer has gone to court over the Yang di-Pertuan Agong Sultan Abdullah Sultan Ahmad Shah’s decision not to accede to Prime Minister Muhyiddin Yassin’s request for a declaration of emergency.
Plaintiff Syed Iskandar Syed Jaafar, through law firm Messrs Kengadharan & Co, filed his originating summons at the High Court Registry in Kuala Lumpur this morning. The government of Malaysia is listed as the sole defendant in the legal action.
On Sunday last week, it was reported that the Agong decided not to accede to Muhyiddin’s request for a proclamation of emergency on the declared reason that the current Perikatan Nasional government was handling the Covid-19 pandemic effectively.
According to a copy of the cause papers, Syed Iskandar seeks for the court to determine, among others, whether the Agong “has an unfettered discretion not to declare an emergency despite the advice of the prime minister of the federal cabinet to the contrary”.
The plaintiff also wants the court to determine this through the true construction of Articles 40 and 150 of the Federal Constitution.
Article 40 generally deals with the need of the Agong to act in accordance with the advice of the cabinet or of a minister acting under the general authority of the cabinet, among others.
"This is a public interest litigation brought to vindicate the rule of law and to uphold the Federal Constitution," the plaintiff stated in the cause papers.
Article 150 deals with the power of the Agong to issue a proclamation of emergency where there is a situation where the security, economic life or public order in the federation, or any part thereof, is threatened, among others.
The plaintiff is also seeking for the court to determine the validity of an amendment to Article 150, which inserted clauses among others, that bars the court from hearing legal action in relation to the issue of a proclamation of emergency.
Among these amendments is the insertion of Article 150 (8), which, among others, states that no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of the proclamation of emergency.
According to a copy of the affidavit in support of the legal action, Syed Iskandar (below) claimed that the Agong, in declining to act upon the advice of Muhyiddin, had resulted in the ruler having exercised his functions in a manner inconsistent with Articles 40 and 150 of the Federal Constitution.
“I verily believe that a determination of the aforesaid questions by this honourable court is important for the vindication of the rule of law and for the purpose of upholding the Federal Constitution,” the plaintiff claimed through the cause papers.
Syed Iskandar also alleged that the said amendment to Article 150 was unconstitutional and thus null and void.
“Such an amendment cuts across the power of judicial review, which is part of the basic structure of the Federal Constitution,” the plaintiff claimed, among others.
Speaking to Malaysiakini later, Syed Iskandar explained that the basic purpose of the legal action was for the court to determine that anyone who becomes the prime minister will not face problems when dealing with those who are supposed to be guardians of the Federal Constitution, such as a situation when bills are sent for royal assent.
"Despite those bills becoming law after 60 days, yet it will still be troublesome to any prime minister to carry out their work.
"Thus the exercise of power by the Agong must be done with caution. The Agong is supposed to be the guardian of the Federal Constitution, thus is not part of the executive.
"The court needs to determine the boundary so that the Agong will be exercising his role fairly and uninfluenced by anyone else," the plaintiff claimed.
He alleged that the Agong also needs to respect a government elected by the people, not one that arises out of sabotage of the democratic process.