By Noel Achariam and Desmond Davidson | The Malaysian Insight

Bersih 2.0 chairman Thomas Fann says the proclamation of emergency had resulted in both houses of Parliament being unable to fulfil their constitutional role of debating and voting on the Emergency Ordinance. – THE MALAYSIAN INSIGHT

SEVEN civil society groups have filed a public interest suit at the Kuala Lumpur High Court against Prime Minister Muhyiddin Yassin and the federal government, seeking a declaration that the emergency imposed on January 12 is unconstitutional.

The groups, advocates of strengthening parliamentary democracy and the safeguarding of the civic space, are in particular seeking declarations on whether section 14 of the Emergency (Essential Powers) Ordinance, which suspends Parliament, and Article 150(8) of the federal constitution, which ousts the jurisdiction of the courts, are unconstitutional.

The groups involved are The Coalition for Clean and Fair Election (Bersih 2.0), Suara Rakyat Malaysia, Centre for Independent Journalism, Aliran, Kuala Lumpur and Selangor Chinese Assembly Hall, Pergerakan Tenaga Akademik Malaysia and Save Rivers. 

Bersih 2.0 chairman Thomas Fann said what they want is a revitalised Parliament that acts as an effective check and balance to the executive.  

“We are concerned with the recent declaration of the prime minister to initiate an emergency. 

“We want a healthy democracy with no abuse of power. So, we see there is legal basis to take action,” he said during a press conference carried live on Facebook today.  

On January 12, Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah had declared a state of emergency for the country until August 1 to curb the increasing number of Covid-19 infections. 

The king consented to this after granting an audience to Muhyiddin, who had carried a proposal from the cabinet.  

Muhyiddin had said the state of emergency proclaimed by the Agong is aimed at giving the government more powers to fight the pandemic. 

Fann said the proclamation of emergency had resulted in both houses of Parliament being unable to fulfil their constitutional role of debating and voting on the ordinance.  

“We are concerned that the main effect of the ordinance is the suspension of Parliament, while it is business as usual for both the government, judiciary and private sectors, subject to the restrictions imposed under the ongoing movement-control order. 

“We would like the courts to declare if they have the power to review any attempt that circumvents constitutional provisions, which require these instruments to be brought before Parliament first.”

Lawyer Edmund Bon, who is representing the groups, said they hoped to serve their suit on the government soon.  

“The courts are working fast. We are probably looking at one to two weeks for case management.” 

Fann said the rule of law should be preserved and the spirit of the constitution is adhered to, where there is a clear separation of powers between the executive, legislative and judiciary. 

“This is so that no one branch of government should subjugate the others. 

“The loss of such checks and balances in our parliamentary democracy would have a long-term irrevocable impact that could ruin our country, as an unchecked government could turn draconian and kleptocratic.” 

He added that the government already has enough powers to handle the Covid-19 crisis and they do not need to resort to suspending Parliament through the ordinance.  

“For these reasons, it is in the public interest that we undertook this legal challenge to allow the court to determine the constitutional powers of Parliament and the judiciary in upholding our system of checks and balances. 

“We undertook this litigation in the public interest to defend the rule of law and the system of checks and balances and to seek the judiciary’s determination on issues related to the ordinance.”