King's decision over emergency proclamation, ordinances cannot be challenged in any court

Judge Datuk Ahmad Kamal Md Shahid said this was provided for under Article 150(8) of the Federal Constitution which among others states that the Yang di-Pertuan Agong’s decision over proclamation of emergency shall be final and conclusive and shall not be challenged or called in question in any court on any ground.

The judge made the ruling after dismissing the leave application for a judicial review brought by three elected representatives to challenge Tan Sri Muhyiddin Yassin's move to advise the Yang di-Pertuan Agong to suspend Parliament and state assembly sittings during an emergency.

The trio were Simpang Jeram assemblyman and Pulai MP Datuk Seri Salahuddin Ayub, Gurun assemblyman and Sungai Petani MP Datuk Johari Abdul and Tebing Tinggi assemblyman Abdul Aziz Bari.

In their application, they named the Prime Minister and the Malaysian Government as the respondents.

Justice Ahmad Kamal also held that the application by the three applicants to challenge the King’s decision over proclamation of emergency was not amenable to judicial review.

“It is reiterated that Article 150(8) of the Federal Constitution is valid and constitutional. More importantly, Article 150(8) of the Federal Constitution has shut the court's doors from any challenge or application be made against the proclamation and the ordinances enacted under the emergency law,” the judge said.

He also said that based on his findings of Article 150(8) of the Federal Constitution, no judicial review can be made to challenge the decision of the King under Article 150(1) and Article 150(2B) of the same Constitution.

“In fact, this issue had been decided by the Federal Court in Datuk Seri Anwar Ibrahim v Public Prosecutor,” he said.

Justice Ahmad Kamal further said that there was nothing in the Federal Constitution that imposed a legal duty on the first respondent (Muhyiddin) to act in the manner dictated by the applicants.

“Hence, in the absence of any legal duty imposed on the first respondent, the applicants’ pleaded reliefs are misconceived in law,” he said.

The judge said, therefore, the applicants have failed to cross the hurdle of the judicial review test as the subject matter in the case have been settled by law.

“It is clear that there is no arguable case for the applicants. Therefore, this application for leave it frivolous. In light of the above, the application for leave to commence judicial review proceedings is dismissed with no order as to costs,” he said.

Senior federal counsels Suzana Atan and S. Narkunavathy acted for the respondents while lawyers Datuk Gurdial Singh Nijar and Christopher Leong represented the applicants.

On Jan 26, the trio filed the leave application seeking several reliefs from the court over the proclamation of emergency.

The Attorney-General's Chambers (AGC) had, on Feb 11, filed an objection to the application on the grounds that the applicants did not have a case that could be argued to enable the court to grant permission for the judicial review.

On Jan 12, Istana Negara, in a statement, announced that the Yang di-Pertuan Agong consented to the Proclamation of Emergency to be implemented nationwide until Aug 1, as a proactive measure to curb the spread of COVID-19 in the country.

Muhyiddin, in a special address in conjunction with the proclamation of the emergency on the same day, explained that the Cabinet had advised the King to issue a proclamation of emergency for the whole country in accordance with Article 150(1) of the Federal Constitution, effective from Jan 11 to Aug 1, 2021.

Article 150 (1), among others, provides that the Yang di-Pertuan Agong can declare a state of emergency if he is satisfied that a grave emergency is taking place causing security or economic life or public order in the federation to be threatened.