By Hafiz Yatim | The Edge Markets

Seven non-governmental organisations (NGOs), including Bersih 2.0, that represent civil society groups have today filed an originating summons at the High Court here to seek the court’s declaration on the role of Parliament and judiciary during this state of emergency that is expected to last until Aug 1.

Besides Bersih representing the NGO for free and fair elections, the other NGOs are 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 application was filed by Messrs AmerBon Advocates and named the Prime Minister (PM) Tan Sri Muhyiddin Yassin and the government as defendants.

Lawyer Edmund Bon from AmerBon said the originating summons was a landmark suit as for the first time, civil society groups had gathered to sue the government on the emergency proclamation.

Bon explained that they are not challenging the Yang di-Pertuan Agong’s prerogative in the proclamation of emergency.

“We are seeking declarations that require the judiciary to interpret Article 150 of the Federal Constitution and to give its opinion. We are not challenging the powers conferred on the Agong to call for an emergency on the advice of the PM,” he said.

A press conference was held online this afternoon, to announce the filing of the suit, where Bersih chairman Thomas Fann said they filed this public interest suit to seek court declarations on issues related to the Emergency (Essential Powers) Ordinance 2021.

“We are concerned that the proclamation of emergency and the Emergency Ordinance has resulted in both Houses of Parliament being unable to fulfil their constitutional role of debating and voting on the Emergency Ordinance.

“We are also concerned that the main effect of the emergency ordinance is the suspension of the 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 (MCO). 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,” it said in the joint statement.

In particular, he added that 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 oust the jurisdiction of the courts, are unconstitutional.

Four questions of law posed

He said in making the filing at the KL court today, four questions of law are posed for determination namely:

  • 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)?

Fann added the suspension of Parliament is an extremely drastic measure.

“This emergency overreaches the constitution and is disproportionate. As citizens and public-spirited, interest groups fighting for reform, the suspension of Parliament affects our work greatly as we are unable to access and seek recourse during parliamentary sittings on matters of concern.

“We believe the rule of law should be preserved and the spirit of the Federal Constitution is adhered to, where there is a clear separation of powers between the executive, legislature and judiciary, and that no one branch of government should subjugate the others,” he said, adding the loss of checks and balances in the nation’s parliamentary democracy would have long-term irrevocable impact.

This, Fann warned, could ruin Malaysia, as an unchecked government could turn draconian and kleptocratic.

“We believe the government already has enough powers to handle the Covid-19 crisis and they do not need to resort to suspending Parliament through the Emergency Ordinance,” he added.

The NGOs are the latest group to seek answers concerning the state of emergency that was announced by Muhyiddin last month.

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.