The court concluded that the power of the Yang di-Pertuan Agong to proclaim an emergency under Article 150 is not justiciable and that amendments through Act A514 do not violate the basic structure doctrine of the Federal Constitution.

Wan Ahmad Farid Wan Salleh J:

The Parties

[1] The plaintiff is an advocate and solicitor.

[2] The 1st defendant is the Government of Malaysia ("GOM"). The 2nd defendant is the Secretary General of the Muslim Lawyers Association of Malaysia ("PPMM"). The 3rd, 4th and 5th defendants are legal practitioners.

[3] The 6th defendant, Centre for a Better Tomorrow, is a company limited by guarantee. It is principally engaged in creating awareness of social issues in Malaysia. The 7th to 11th defendants were the members of Dewan Rakyat and Dewan Negara at the material time.

[4] The GOM is the initial defendant in this OS. However, pursuant to separate applications made by the parties, my learned predecessor had allowed the 2nd to 11th defendants to intervene on 18 February 2021.

[5] In furtherance to the said Order dated 18 February 2021, the 2nd to 11th defendants were added as defendants in this OS. Subsequently, the plaintiff filed an amended OS on 21 April 2021 in Encl 93.

The Plaintiff's Case

[6] This OS is supported by the affidavit of the plaintiff in Encl 2 ("AIS- 2"). There are further exchanges of affidavits filed by the parties, which will be referred to in this judgment as and when the need arises.

[7] On 23 October 2020, the then Prime Minister advised His Majesty the 16th Yang di-Pertuan Agong to issue a Proclamation of Emergency pursuant to art 150 of the Federal Constitution . It is not in dispute that the aforesaid advice had been agreed upon by the Cabinet through a Special Cabinet Meeting.

[8] Two days later, on 25 October 2020, following a meeting of the Conference of Rulers, the Yang di-Pertuan Agong expressed His Majesty's opinion that a Proclamation of Emergency in the country or any part of the country was unnecessary.

[9] The plaintiff was of the view that the opinion expressed by the then Yang di-Pertuan Agong amounted to a rejection of the Prime Minister's advice.

[10] According to the plaintiff, the decision of the then Yang di-Pertuan Agong has given rise to questions of constitutional and public importance, as follows:

(i) Whether on a true construction of arts 40 and 50 of the Federal Constitution , the Yang di-Pertuan Agong has an unfettered discretion not to declare an emergency despite advice of the Prime Minister or the Federal Cabinet to the contrary.

(ii) Whether Act A514 which amended art 150 by adding Clauses (8) and (9) is violative of the basic structure of the Federal Constitution having regard to art 4(1) thereof.

[11] However, in his affidavit in Encl 38 ("AIS-38"), the plaintiff acknowledged that the GOM in another matter before the Federal Court in Civil Reference No 06(RS)-1-03/2019(W) in the case of Datuk Seri Anwar Ibrahim v. Government of Malaysia & Anor; 2021 MarsdenLR 2148 ; [2021] 8 CLJ 511, had conceded that Yang di-Pertuan Agong is under a duty to follow the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet.

[12] The plaintiff further affirmed in AIS-38 that in view of the concession made by the GOM, Question (i) in the OS is "therefore academic and both parties are on common ground".

[13] In para 9 of AIS-38, the plaintiff affirmed that the only question to be deliberated and determined in the OS is Question (ii). As alluded to earlier, it concerns art 150(8). As to art 150(9), learned counsel for the plaintiff, in his written submission in para 15 of Encl 142, conceded that it is valid.

[14] In the circumstances, what remains to be decided in this OS is the validity of art 150(8) of the Federal Constitution .

The Impugned Article

[15] The relevant clauses of art 150 of the Federal Constitution (" FC "), which were introduced by the Constitution (Amendment) Act 1981 ("Act A514"), which are the subject matter of contention, are reproduced below:

(8) Notwithstanding anything in this Constitution:

(a) 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 o