KUALA LUMPUR: The High Court has reserved judgment on an application to challenge a constitutional amendment that placed the Yang di-Pertuan Agong’s power to proclaim an Emergency beyond review by the courts.
Justice Wan Ahmad Farid Wan Salleh said he will deliver his ruling on Jan 24.
The application had been brought by a lawyer, Syed Iskandar Syed Jaafar Al Mahdzar, who asked the High Court to determine whether the King’s decision not to declare an Emergency in October 2020, against the prime minister’s advice, could be challenged in court.
The government applied to strike out the suit as an abuse of the court process.
Syed Iskandar’s counsel, R Kengadharan, contended that any provision to oust the jurisdiction of the court to inquire into a law or state action would violate the doctrine of separation of powers and the powers of the judiciary.
Kengadharan contended that several basic features of the constitution could not be taken away by way of a constitutional amendment or legislation passed by Parliament as the constitution provides power for the judiciary to keep every organ and institution of the state within its legal boundaries.
He argued that the government’s application to strike out Syed Iskandar’s application was without merit.
“There is a serious point of constitutional law for argument. This is not a plain and obvious case in which the exercise of summary jurisdiction is warranted,” Kengadharan said.
However, senior federal counsel Liew Horng Bin submitted that Syed Iskandar’s suit, filed in November 2020, was academic and the court was “not bound to give a purely advisory opinion on a question of law that does not affect any act by any party”.
He said the King’s decision on Oct 25, 2020 not to declare an Emergency sought by then prime minister Muhyiddin Yassin was within his prerogative and not within the court’s judicial power.
“The non-proclamation of emergency is non-justiciable and inherently unsuited for determination by the judicial process,” he said.
Liew said Syed Iskandar’s suit had ignored the intricacies of various constitutional conventions related to the working relationship between the King and the prime minister.
The court has allowed 10 people to intervene in the proceedings. They are former prime minister Dr Mahathir Mohamad, ex-Jerlun MP Mukhriz Mahathir, Amiruddin Hamzah (former Kubang Pasu MP), Shahruddin Salleh (former Sri Gading MP), ex-senator Marzuki Yahya, as well as lawyers Khairul Azam Abdul Aziz, Malcolm Fernandez and Nazirah Abdul Ghani.
Rights groups Centre for A Better Tomorrow and the Association of Muslim Lawyers were also allowed to intervene, while the Bar Council was granted amicus curiae status as a friend of the court.