Sept 30 to decide on appeals by elected reps in initiating judicial review

The Court of Appeal three-member bench comprising Justices Datuk Has Zanah Mehat, Datuk Vazeer Alam Mydin Meera and Datuk Ahmad Zaidi Ibrahim deferred their decision to Sept 30 in the appeals brought by the elected representatives as they needed time to consider the issues raised by parties.

The bench earlier heard the appeals brought by Simpang Jeram assemblyman and Pulai MP Datuk Seri Salahuddin Ayub, Gurun assemblyman and Sungai Petani MP Datuk Johari Abdul, Tebing Tinggi assemblyman Abdul Aziz Bari and Pasir Gudang MP Hassan Abdul Karim.

They were appealing against the decisions of two separate High Courts in refusing to grant them leave to commence the judicial review applications.

In today's proceedings conducted virtually, lawyer Datuk Dr Gurdial Singh Nijar, representing the elected representatives, submitted that Parliament and the state assemblies had never been suspended during an emergency in Malaysian history.

Gurdial Singh said the issues raised in the judicial review, among others, on whether the provisions of the Emergency (Essential Powers) Ordinance 2021 suspending Parliament and state assemblies were lawful, were clearly arguable.

"These issues should be resolved by our courts for which reason, leave should be granted for these issues to be properly ventilated and decided by the courts," he said.

He said the Federal Court made it clear that any executive action could be challenged on the basis that it conflicted with the central tenets of the Federal Constitution.

Senior federal counsel Suzana Atan, appearing for Muhyiddin and the Malaysian government who were named as respondents in the leave for judicial review applications, contended that the court must be clothed with jurisdiction to entertain the judicial review applications.

In seeking the court to dismiss the appeal, she said "Article 150 (8) (b) 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 the emergency."

On March 11, this year, the Kuala Lumpur High Court dismissed the applications for leave for judicial review brought by Salahuddin, Johari and Abdul Aziz.

High Court judge Datuk Ahmad Kamal Md Shahid held that the Yang di-Pertuan Agong's proclamation and the ordinances enacted under the emergency law could not be challenged in any court of law.

As for Hassan, his bid to get leave to initiate a judicial review was dismissed by the Johor Bahru High Court on April 26, this year.

On Jan 26, this year, Salahuddin, Johari and Abdul Aziz filed the leave applications seeking relief from the court over the proclamation of emergency, while Hassan filed his application for leave to initiate judicial review on Jan 27, this year.

On Jan 12, this year, 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.