July 22 date for Bersih, PKR lawmakers’ bids to have Federal Court decide if Parliament’s suspension during Emergency is constitutional

KUALA LUMPUR, May 3 — The High Court today fixed July 22 to hear two separate applications by Bersih 2.0 and civil society organisations as well as two PKR lawmakers on whether they can refer constitutional questions linked to the Emergency to the Federal Court.

The constitutional questions which they want the Federal Court to decide on include whether an Emergency Ordinance provision which suspends Parliament during the current Emergency is unconstitutional and invalid.

High Court judge Datuk Ahmad Kamal Md. Shahid fixed this hearing date, after giving time for the parties involved to file written submissions by June 3 and any submissions in reply by June 17.

The hearing date of July 22 was also fixed based on the available dates of lawyers of all parties and also the court.

In this lawsuit filed on February 2 via originating summons, Bersih 2.0 and its chairman Thomas Fann, and six other civil society groups — the Malaysian Academic Movement (Gerak), Aliran, Suara Rakyat Malaysia (Suaram), the Kuala Lumpur and Selangor Chinese Assembly Hall (KLSCAH), Save Rivers, the Centre for Independent Journalism (CIJ) — had named the two respondents as Prime Minister Tan Sri Muhyiddin Yassin and the Malaysian government.

Bersih 2.0 and the civil society organisations are seeking for several court orders, including declarations that Section 14 of the Emergency (Essential Powers) Ordinance 2021 — which suspended Parliament sittings during the Emergency — to be deemed unlawful, unconstitutional and invalid.

In the lawsuit, they also want a declaration that a constitutional amendment (Section 15(d) of the Constitution (Amendment) Act 1981) — which had added Article 150(8) into Malaysia’s Federal Constitution and with this new addition purportedly ousting the courts’ jurisdiction from deciding on the validity of Emergency ordinances — is unconstitutional for violating the Federal Constitution’s basic structure and Articles 4, 8 and 121.

After filing this lawsuit, the civil society organisations on March 17 subsequently also filed an application at the High Court to refer six questions of law for the Federal Court to decide on first, before the High Court hears the lawsuit.

Lawyer New Sin Yew, who represented Bersih and the other civil society organisations, today said the High Court will be hearing the applications to refer constitutional questions to the Federal Court first before dealing with the actual lawsuit. 

“If the court refers, then the originating summons will be heard after that. If the court doesn’t refer, then we will proceed to have the originating summons heard,” he told reporters when met after case management today.

He confirmed that there were overlaps between the six questions of law which the civil society groups wanted to refer to the Federal Court and the court orders being sought in the lawsuit before the High Court.

When asked if the lawsuit by Bersih 2.0 and the other civil society groups would become academic if the Emergency ends on the expected date of August 1, New replied in the negative as he said it was also a challenge against constitutional amendments — that ousted or prevent the courts from hearing and deciding on the validity of Emergency Ordinances — instead of just on the current Emergency.

“No, because what we are asking for doesn’t just cover this Emergency, because the originating summons are also seeking for certain orders on constitutional amendments.

“So we are saying those amendments made back then are unconstitutional, so it doesn’t become academic,” he told reporters, referring to Section 15(d) of the Constitution (Amendment) Act 1981.

Separately, lawyer Surendra Ananth — who is representing two PKR lawmakers who are interveners of the lawsuit — similarly said the lawsuit would not become academic even if the Emergency ends on August 1.

“We will take the same position, even when the Emergency is over, it’s of general application,” he said.

Previously on April 1, the two PKR lawmakers — Dewan Negara member Mohd Yusmadi Mohd Yusoff and Hang Tuah Jaya MP Datuk Seri Shamsul Iskandar Mohd Akin — were allowed to be interveners in the lawsuit.

After being made interveners, the two PKR lawmakers have filed a separate application to the High Court to ask for four questions of law to be referred to the Federal Court.

In their application, the PKR lawmakers want the Federal Court to decide on legal questions such as whether the 1981 constitutional amendment which added Article 150(8) into the Federal Constitution is void, and whether Article 150(8) has the effect of ousting the High Court’s jurisdiction to decide on challenges against specific provisions of Emergency Ordinances as compared to challenges against Emergency Ordinances as a whole. 

The PKR duo also want to ask the Federal Court to decide whether Section 14 of the 2021 Emergency Ordinance — which suspends Parliament during the Emergency — is void, and whether the constitutional power to make Emergency Ordinances extends to promulgating a provision of an Emergency Ordinance that has the effect of nullifying or suspending Article 150(3). Article 150(3) requires Emergency proclamations and Emergency Ordinances to be presented before Parliament.

The application by the PKR lawmakers to refer constitutional questions to the Federal Court has some overlaps with the application by the civil society organisations to refer legal questions to the Federal Court.

Other than the two PKR lawmakers, the High Court had on April 1 also allowed three PAS lawmakers — Pasir Mas MP Ahmad Fadhli Shaari and Dewan Negara lawmakers Khairil Nizam Khirudin and Mohd Apandi Mohamad — to be interveners in the lawsuit by Bersih 2.0 and the civil society organisations.

Lawyer Andrew Khoo held a watching brief today for the Malaysian Bar.

(First published by Malay Mail, 3 May 2021: https://www.malaymail.com/news/malaysia/2021/05/03/july-22-date-for-bersih-pkr-lawmakers-bids-to-have-federal-court-decide-if/1971253)