Justice Collin Lawrence Sequerah said Article 150(8) of the constitution stipulates that such matters are non‑justiciable, thereby barring the courts from inquiring into them.
He said the provision calls for the king to be satisfied that a grave emergency exists, which “shall be final and conclusive and shall not be challenged or called in question in any court on any ground”.
Accordingly, it is for the executive to advise the king whether the circumstances exist for such a declaration to be made, the judge said.
“The court cannot exercise its judicial power on national security. That is best left to the executive,” Sequerah said in dismissing an appeal by lawyer Syed Iskandar Syed Jaafar.
Syed Iskandar was seeking leave to challenge then Yang di-Pertuan Agong Al-Sultan Abdullah Sultan Ahmad Shah’s refusal to declare a state of emergency in October 2020.
The bench, which included Justices Supang Lian and Alwi Abdul Wahab, held that Article 150(8) was deliberately framed to oust the courts’ jurisdiction.
“There is a limit to judicial powers. The framers of the constitution were acutely aware of the institutional competence of the respective branches of the government,” he said.
Sequerah said policy-centric matters such as considerations pertaining to the security of the federation, friendly relations with other countries, public order, and morality are considered beyond the institutional competence of the judiciary.
The judge said the court accepted the basic structure doctrine as part of the Malaysian jurisprudence. “This includes the separation of powers and judicial independence.”
He added that the panel had permitted the appeal to proceed on grounds of public interest, even though its outcome was academic, relying on a legal principle known as the “Salem exception” established by the English House of Lords.
On Feb 15, 2024, Chief Justice Wan Ahmad Farid Wan Salleh, then a High Court judge, ruled that Syed Iskandar’s application was not justiciable.
Syed Iskandar named the government and then prime minister Muhyiddin Yassin as respondents in the appeal.
Lawyers T Gunaseelan and R Kengadharan represented Syed Iskandar, while senior federal counsel Liew Horng Bin appeared for the government.
Lawyer Bastian Pius Vendargon represented the Malaysian Bar as amicus curiae (friend of the court).