No legal avenue to challenge emergency

Courts do not have jurisdiction to entertain any challenge against emergency proclamation by the King, as stipulated under Constitution


THERE may not be a legal avenue for groups to challenge the proclamation of emergency as the matter is not justiciable under existing law, experts said.

Singapore Institute of International Affairs fellow Dr Oh Ei Sun said the legal avenue for challenging the emergency is unavailable and an appeal to Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah to overturn the emergency would be difficult.

“I think there is an established case law dictating that a proclamation of emergency is not justiciable. Unless the judiciary is willing to overturn its own precedent, it appears that the legal avenue for challenging the emergency is decidedly closed.

“An appeal to the King to overturn the emergency is, I think, somewhat difficult because even if the King were to exercise discretion, he is likely to decide only after an advice is rendered to him by the prime minister (PM),” he told The Malaysian Reserve (TMR) when contacted yesterday.

He said the Movement Control Order (MCO) is needed to curb the pandemic, but the emergency was not required as the Parliament is unlikely to reject any amendments made to existing laws if they are inadequate to manage the spread of the virus.

The recent emergency proclamation had caused uproar among political parties and several other groups who had highlighted the call was politically motivated, instead of an effort to curb the resurgence of Covid-19 in the country.

University of Malaya political analyst Associate Prof Dr Awang Azman Awang Pawi said the challenge against the emergency proclamation can be brought to court to become an academic discussion.

“It is best to let the court decide as the judge can provide guidance on the matter. The results may not favour any parties involved, but will be based on laws.

“If you bring it to court, it can be viewed as an academic matter, therefore it can be debated from various angles,” he told TMR.

On Sunday, Opposition leader Datuk Seri Anwar Ibrahim voiced his intention to challenge the emergency proclamation in court as he claimed that the move was a desperate attempt by the Perikatan Nasional government to stay in power.

This followed PM Tan Sri Muhyiddin Yassin’s emergency announcement last week which came a day after stricter movement restrictions were reimposed on several states in the country.

The emergency is in effect until Aug 1, 2021, or until the number of Covid-19 infections have reduced to a manageable level. Under the emergency, the Parliament is suspended and elections must be postponed.

Senior lawyer Mohamed Haniff Khatri Abdulla told Bernama yesterday that the courts do not have the jurisdiction to entertain any challenge against the emergency proclamation by the King, as stipulated under Article 150 (8)(b) of the Federal Constitution.

However, Universiti Sains Malaysia analyst Associate Prof Dr Sivamurugan Pandian said the emergency could complement the measures under MCO and assist existing efforts to end the pandemic.

“Maybe, the emergency can be used to mobilise other resources that are not applicable under the MCO. The emergency could also possibly improve the delivery system of assistance required and go to more affected areas. I believe that the emergency could complement measures which the MCO could not have done,” he said.

Yesterday, former Umno leader Datuk Khairuddin Abu Hassan filed a suit against Muhyiddin and questioned the PM’s legitimacy in advising the King for the emergency declaration.

Khairuddin claimed that the PM had lost the trust of the majority of MPs and was not in the position to advise the King on such matters.