<figure id="attachment_2711958" aria-describedby="caption-attachment-2711958" style="width: 1600px" class="wp-caption aligncenter"><img loading="lazy" class="wp-image-2711958 size-full" src="https://media.freemalaysiatoday.com/wp-content/uploads/2024/03/9ac674a4-mahkamah-persekutuan-istana-kehakiman-federal-court-fmt-new-170324.webp" alt="Federal Court" width="1600" height="1000" /><figcaption id="caption-attachment-2711958" class="wp-caption-text">The Federal Court will rule on whether lawyer Syed Iskandar Syed Jaafar can challenge the exercise of the king’s power to issue a proclamation of emergency.</figcaption></figure>
PUTRAJAYA: The Court of Appeal has reserved judgment on whether a 1981 amendment to the Federal Constitution, which introduced an ouster clause barring judicial review of emergency proclamations, should be struck down as unconstitutional.
Justice Supang Lian said the three-member panel of judges required time to review submissions made by parties.
&#8220;A case management will be held tomorrow to fix a decision date,&#8221; said Supang, who sat with Justices Collin Lawrence Sequerah and Alwi Abdul Wahab.
The court was hearing an appeal by lawyer Syed Iskandar Syed Jaafar, who is challenging then Yang di-Pertuan Agong Al-Sultan Abdullah Sultan Ahmad Shah’s refusal to declare a state of emergency five years ago.
Article 150(8) reads that the satisfaction of the king as to the presence of a grave emergency “shall be final and conclusive and shall not be challenged or called in question in any court on any ground”.
On Feb 15 last year, Justice Wan Ahmad Farid Wan Salleh, then a High Court judge, ruled that Syed Iskandar’s application was not justiciable.
He said Article 150(8) was an intrinsic part of the basic structure of the constitution.
&#8220;Under this provision, the court has no jurisdiction to hear the application,” he ruled when dismissing Syed Iskandar’s suit.
Wan Farid, now the chief justice, also said the courts have always considered security matters to be of a “peculiar texture”.
Syed Iskandar named the government and then prime minister Muhyiddin Yassin as respondents in the appeal.
Senior federal counsel Liew Horng Bin, in rebuttal submissions today, argued that several clauses under Article 150 affirm that both the king and Parliament were conferred with checks and balances on Emergency proclamations.
&#8220;The constitutional sanction mechanism is sufficient against potential abuse by the executive,&#8221; he said, adding that this was demonstrated by the king and the Malay Rulers during the Covid-19 pandemic.
Liew said that for security and policy-centric reasons, the clause ousting the jurisdiction of the courts over the proclamation or non-proclamation of a state of emergency is constitutional.
Lawyer Aidil Khalid appeared for the Muslim Lawyers Association and three lawyers &#8211; Khairul Azam Abdul Aziz, Malcolm Fernandez and Nazirah Abdul Ghani &#8211; who intervened in the appeal.
Counsel Raphael Kok represented Centre for a Better Tomorrow, also named as a respondent in the appeal.
Lawyer Rafique Rashid Ali acted for former Langkawi MP Dr Mahathir Mohamad, his son Mukhriz (the former Jerlun MP), Amiruddin Hamzah (former Kubang Pasu MP), Shahruddin Salleh (former Sri Gading MP) and ex-senator Marzuki Yahya.
The lawyers took the position that the subject matter of Syed Iskandar&#8217;s challenge was non-justiciable, meaning it cannot be adjudicated in court.
Lawyer Bastian Pius Vendargon, acting as amicus curiae (friend of the court) for the Malaysian Bar, submitted that the 1981 amendment which introduced the ouster clause was unconstitutional as it violated the doctrines of separation of powers and constitutional supremacy.
&#8220;The amendment took away the constitutional judicial review jurisdiction of the courts,&#8221; he said.
Vendargon said the doctrines were part of the foundational aspect of the constitution and are intrinsic in Article 4(1) of the constitution.
&#8220;The judiciary has a role to scrutinise a proclamation and the advice given by the executive,&#8221; he said.
Lawyers T Gunaseelan and R Kengadharan represented Syed Iskandar.

MatchPoint Times

Judgment reserved on whether courts can review emergency proclamations

The government contends that the clause ousting the court’s jurisdiction over Article 150 proclamations is valid, citing security and policy-centric reasons.

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