By Rahmat Khairulrijal | New Straits Times
The High Court today dismissed legal challenges by two lawmakers, the Malaysian Bar, Bersih 2.0 and others over the suspension of Parliament during the 2021 Covid-19 emergency.
Judge Datuk Aliza Sulaiman ruled that the court could not grant declarations sought to invalidate provisions of the Emergency (Essential Powers) Ordinance 2021, including Section 14, which suspended Parliament.
She dismissed two judicial review applications and two originating summonses with no order as to costs.
Aliza said Article 150(8) of the Federal Constitution barred the court from ruling on challenges to the validity of an emergency ordinance, including challenges to individual provisions.
She said declaring Sections 11, 14 and 15 unconstitutional would still amount to finding the ordinance invalid, at least to the extent of those provisions.
Sections 11, 14 and 15 dealt with executive and legislative powers, the sitting of Parliament and state legislative assemblies respectively.
Allowing such challenges, she said, would effectively enable parties to obtain “provision by provision what it could not obtain by a direct challenge to the ordinance as a whole”.
However, the court rejected the government’s argument that the proceedings should be dismissed as academic following the expiry of the emergency.
“The court accepts that a serious constitutional question is not automatically academic merely because the challenged measure has expired,” she said.
Aliza said courts could, in certain circumstances, decide recurring questions, particularly where measures were too short-lived for ordinary litigation to conclude.
The court nevertheless found that the declaratory reliefs raised questions of public importance.
On Parliament’s constitutional role during an emergency, Aliza said Article 150 did not envisage Parliament being removed entirely from the constitutional framework.
The judicial review applications were filed by Pasir Gudang MP Hassan Karim and Perak assemblyman Abdul Aziz Bari.
They challenged former prime minister Tan Sri Muhyiddin Yassin’s advice to then Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah, which led to the promulgation of Section 14 and the suspension of Parliament.
The Federal Court on July 24, 2024 granted the two lawmakers leave to commence judicial review proceedings and remitted the matter to the High Court for determination on its merits.
The Malaysian Bar and Bersih 2.0, together with seven others, separately filed originating summonses challenging aspects of the emergency proclamation and ordinances.
