Malaysia's Federal Court can provide The Agong a solution to His Majesty's Emergency rule crisis, but the Court must be willing to justify its status as guardian of the Constitution

 by Ganesh Sahathevan 

Malaysia's Federal Court may yet justify its existence by providing a way out of the country's current state of emergency which was has been declared by its head of state, His Majesty The Yang Dipertuan Agong, which many believe to be motiivated by politics rather than the health and well being of His Majesty's subjects.

The cause of this optimsim is to be found in the case of  Tan Sri  Musa Hj Aman v. Tun  Datuk  Seri Panglima  Hj Juhar Hj Mahiruddin  & Anor  [2020] CLJ JT (13). In tha case the appellant sought leave before the Federal Court  to appeal a decision of The Court Of Appeal which had affirmed the decision of the High Court, which had held that he had been validly dismissed by the respondent as Chief Minister Of The State Of Sabah. 

The majority of a three judge bench of the Federal Court granted leave and in doing so declared and affirmed the  courts' role in upholding the nation's fundamental laws.  Abdul Rahman Seblii and Zabariah Mohd Yusof FCJJ held (at paragraph 52):

Before we depart from the case, we just want to say that in considering Tan Sri Musa’s application for leave, we have reminded ourselves that the courts are the guardians of the Constitution of Sabah. 

Their Honours  comments referred to    the Constitution Of The State Of Sabah, given the context of the matter before them. However it is not improbable that they intended  their words to have wider application, and that their role as guardians applied equally to the Constitutions of the other states of the Federation Of Malaysia, and the Federation itself.  This intention becomes clearer when one considers the rest of the paragraph above: 

 In this regard, what the Supreme Court of India said in State of Rajasthan & Ors. Etc. Etc. v Union of India Etc. Etc. 1977 AIR 1361 is pertinent to the point-

“The court cannot and should not shirk this responsibility, because it has sworn the oath of allegiance to the Constitution and is also accountable to the people of this Country. There are indeed numerous decisions of this court where constitutional issues have been adjudicated upon though enmeshed in questions of religious tenets, social practices, economic doctrines or educational policies. The court has in these cases adjudicated not upon the social, religious, economic or other issues, but solely on the constitutional questions brought before it and in doing so, the court has not been deterred by the fact that these constitutional questions may have such overtones or facets. We cannot, therefore, decline to examine whether there is any constitutional violation involved in the President doing that he threatens to do, merely on the facile ground that the question is political in tone, colour or complexion.”

While leave was granted the appeal has been withdrawn by the appellant as a result of the change in control of the Government of Sabah.  However, Constitutional matters remain alive and at the heart of Malaysia's politics, especially at the Federal level. The country remains under a state of emergency, ostensibly decalred to enable the government led by Prime Minister Muhyiddin Yassin to expeditiously manage the COVID pandemic.  The declaration of emergency rule allows him to legislate without the approval of Parliament , and avoid any scrutiny of his Government's actions.  

A number of challenges against the enabling legislation, the Emergency (Essential Powers) Ordinance 2021, have been commenced. In one of these, the High Court held that the proclamation of an Emergency by the Constitutional Head Of State, the Yang DiPertuan Agong, was not justiciable as a result of the provisions of Article 150 (8) of the Federal Constitution, which states: 

Notwithstanding anything in this Constitution - 

1. the satisfaction of the Yang di-Pertuan Agong mentioned in Clause (1) and Clause (2B) shall be final and conclusive and shall not be challenged or called in question in any court on any ground; and 

2. no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of- 

   1. a Proclamation under Clauses (1) or of a declaration made in such Proclamation to the effect stated in Clause (1); 

   2. the continued operation of such Proclamation; 

   3. any ordinance promulgated under Clause (2B); or 

   4. the continuation in force of any such ordinance. 

Clauses (1) and (2B) state :

(1) If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.

(2B) If at any time while a Proclamation of Emergency is in operation, except when both Houses of Parliament are sitting concurrently, the Yang di-Pertuan Agong is satisfied that certain circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as circumstances appear to him to require.

There seems then to be some tension between the Federal Court's desire to be “guardians of the constitution” and the ouster provisions contained in Article 150 (8). That tension may never be resolved given the plain and direct wording of Article 150 (8). Additionally in the recent Federal Court decision of Maria Chin Abdullah vs Ketua Pengarah Imigresen & Another (01(F)-5-03/2019(W) dated 12 Jan 2021, the majority of 4 to 3 held, at paragraph 254:

“..........sections 59 and 59A of the Immigration Act are not void for being inconsistent with Article 4(1) read with Article 121(1) of the Federal Constitution. The limitation of the court’s review power by section 59A of the Immigration Act falls squarely within the power of Parliament to legislate pursuant to the power conferred on it by Article 121(1) of the Federal Constitution and is not in breach of the doctrine of separation of powers, which cannot in any event prevail over the written constitution”.

That as they say, may well be that, but for the decision of the Supreme Court in R v The Prime Minister [2019] UKSC 41, the Boris Johnson case. UK decisions remain persuasive in the Malaysian legal system, and in that case the Court faced with the question of justiciability held:

The first question is whether the lawfulness of the Prime Minister’s advice to Her Majesty is justiciable. This Court holds that it is. The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries. As long ago as 1611, the court held that “the King [who was then the government] hath no prerogative but that which the law of the land allows him”..... there is no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power. All the parties to this case accept that. This Court has concluded that this case is about the limits of the power to advise Her Majesty to prorogue Parliament.

As guardians of the Constitution the Federal Court need only declare that the Prime Minister's advice to the Agong was illegal. There is nothing to say that the Court cannot do so without having to consider the satisfaction of the Yang di-Pertuan Agong.

That the exercise may well be academic is irrelevant, as the majority in Musa Aman's case held. In that case the majority made clear that the Federal Court is the “ guardian of the Constitution” and will not be deterred in that duty simply because the issues at hand may be considered academic.

In fact, a number of consequences can flow from such a declaration. First, it can deprive the Government's Emergency laws of legitimacy, even if they be valid. Importantly, it could provide the Yang DiPertuan Agong with a means to revoke his declaration of an Emergency. It should be noted that there is nothing in the Constitution to prevent the Agong from doing so, or is declaring that he was not properly advised. In that regard it should be noted that

the Agong rejected the Prime Minister's advice that an Emergency be declared, at first instance. 

In light of the above parties seeking to end Malaysia's Emergency rule ought to pursue with all vigour and urgency the issues in dispute through the judicial system.

END