By Timothy Achariam | The Edge Markets

The High Court here will hear an application set for July 22 by seven non-governmental organisations (NGOs), including Bersih 2.0, that represent civil society groups which are seeking a declaration on the role of Parliament and judiciary during this state of Emergency. 

The groups are seeking to refer these questions from the High Court to the Federal Court (the apex court) for the judiciary to interpret Article 150 of the Federal Constitution and to give its opinion.

In particular, they are seeking declarations on whether the Emergency (Essential Powers) Ordinance, or section 14 of the Ordinance which suspends Parliament, and Article 150(8) of the Constitution, which ousts the jurisdiction of the courts, are unconstitutional.

Judge Datuk Ahmad Kamal Md Shahid had fixed the date at case management today. Lawyer for the group, New Sin Yew, told the court that they, the Attorney-General’s Chambers (AGC) and five other intervenors have filed their affidavits for the application.

Speaking to reporters after the case management, New said this application can’t be deemed as merely academic. 

“What we are seeking today is not only regarding this emergency. We are contending that the 1981 amendments to Article 150(8) are null and void because of the ouster clause that excluded the court’s scrutiny,” he said.

Bersih chairman Thomas Fann said there are 10 questions of law posed for determination from various parties seeking to intervene; however, the four main questions posed for determination are: 

  • Given that both Houses of Parliament had not been dissolved but only stood adjourned at the relevant times, whether the Proclamation of Emergency issued on Jan 11, 2021 promulgated on Jan 14, 2021 had to be laid before both Houses of Parliament pursuant to Article 150(3) of the Federal Constitution?
  • Whether section 14 of the Emergency (Essential Powers) Ordinance 2021 relating to the suspension of Parliament is valid insofar as it prevents or frustrates the operation of Article 150(3) of the Federal Constitution?
    (section 14 purports to, inter alia, disable the operation of the provisions of the Federal Constitution relating to the summoning, prorogation and dissolution of Parliament and to cancel any meeting of Parliament that had been summoned but not yet held.)
  • Whether the 1981 constitutional amendment that added Article 150(8) of the Federal Constitution that purportedly ousts the jurisdiction of the courts is unconstitutional (for violating Articles 4 and 121 of the Federal Constitution and/or the basic structure of the Federal Constitution)?
  • Whether Article 150(8) of the Federal Constitution, even if valid, prevents the courts from reviewing the constitutionality of an ordinance made under Article 150(2B) that does not comply with, prevents or frustrates the requirements of Article 150(3) of the Federal Constitution (which require the proclamation/ordinance to be laid before Parliament)?

The NGOs include Suara Rakyat Malaysia (Suaram), Center for Independent Journalist (CIJ), Aliran, the Kuala Lumpur and Selangor Chinese Assembly Hall (KLSCAH), Pergerakan Tenaga Akademik Malaysia (Gerak) and Save Rivers.

The NGOs are the latest group to seek answers concerning the state of emergency that was announced by Prime Minister Tan Sri Muhyiddin Yassin.

The others included opposition leader Datuk Seri Anwar Ibrahim, Pakatan Harapan leaders — Amanah’s deputy president Datuk Seri Salahuddin Ayob (who is also Pulai MP), Datuk Johari Abdul (Sungai Petani-PKR) and Professor Dr Abdul Aziz Bari (Tebing Tinggi assemblyman-DAP), and Datuk Seri Khairuddin Abu Hassan, who is a stalwart supporter of Tun Dr Mahathir Mohamad.

The final one is lawyer Dr Syed Iskandar Syed Jaafar.