NGOs ask courts to consider role of judiciary, Parliament in ensuring checks, balances during Emergency

A screengrab of the Zoom live session, showing Peter (top row, red shirt) during the live press conference with members of six NGOs following their decision to file an originating summons today and seek court declarations on issues related to the Emergency (Essential Powers) Ordinance 2021.

KUCHING, Feb 2: Save Rivers Sarawak has joined six other civil society organisations (CSOs) in Peninsular Malaysia to file a public interest suit today at the High Court against Prime Minister Tan Sri Muhyiddin Yassin and the government of Malaysia, to seek court declarations on issues related to the Emergency (Essential Powers) Ordinance 2021.

The six other CSOs, involved in various areas of advocacy to strengthen parliamentary democracy and the safeguarding of the civic space, are The Coalition for Clean and Fair Election (Bersih 2.0), Suara Rakyat Malaysia (Suaram), Centre for Independent Journalism (CIJ), Aliran, The Kuala Lumpur and Selangor Chinese Assembly Hall (KLSCAH) and Pergerakan Tenaga Akademik Malaysia (Gerak).

In a joint press statement issued today, Save Rivers chairman Peter Kallang pointed out that they were 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 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.

“In particular, we 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,” he said.

The suspension of Parliament, Peter asserted, was an extremely drastic measure as this Emergency overreached the Constitution and was 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, Legislative and Judiciary, and that no one branch of government should subjugate the others,” he added.

Peter stressed that the loss of such checks and balances in the parliamentary democracy would have long-term irrevocable impact that could ruin the country, 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.

“Like all Malaysians, we are extremely concerned with the devastating impacts of this pandemic — the loss of lives, livelihood and rapid erosion of our economy. Political stability is necessary for the government to steer us out of this unprecedented crisis, but stability must not be achieved at the expense of institutional checks and balances provided by Parliament and the Judiciary,” he said.

For these reasons, Peter emphasised that it was in the public interest that the CSOs undertook this legal challenge to allow the court to determine the constitutional powers of Parliament and the Judiciary in upholding Malaysia’s system of checks and balances.

“We undertook this ligation 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 Emergency Ordinance,” he added.

In the submission to the Kuala Lumpur High Court today, the groups posed the following questions of law:

1. 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 11 January 2021 (vide P.U.(A)7/2021) and the Emergency (Essential Powers) Ordinance 2021 promulgated on 14 January 2021 had to be laid before both Houses of Parliament pursuant to Article 150(3) of the Federal Constitution?

2. Whether Section 14 of the Emergency (Essential Powers) Ordinance 2021 relating to the suspension of Parliament is valid in so far 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).

3. 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)?

4. 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)? — DayakDaily