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2021 MarsdenLR 2472
HIGH COURT MALAYA KUALA LUMPUR
DATO SERI ANWAR IBRAHIM – Appellant
Versus
TAN SRI DATO MUHYIDDIN MD YASSIN (PERDANA MENTERI MALAYSIA) & ANOR – Respondent
[Judicial Review Application No: WA-25-31-01-2021]
Judicial review cannot challenge the validity of emergency laws under articles 150(6) and (8) of the Constitution, which are constitutional and prevent court intervention in matters of national security.
Headnote:(A) Federal Constitution – Articles 4, 8, 121, and 150 – Emergency (Essential Powers) Ordinance 2021 – Application for leave to commence judicial review proceedings dismissed as the court found no jurisdiction to entertain the challenges against the emergency ordinance based on articles 150(6) and (8) which expressly prohibit judicial review. The court emphasized the constitutional validity of the provisions preventing challenges to Emergency proclamations in matters of national security. (Paras 39-42)
(B) Judicial Review – Justiciability – The advice given by the Prime Minister and the Cabinet to the Yang di-Pertuan Agong is not amenable to judicial review as it is not a legal decision but part of the decision-making process that is non-justiciable due to constitutional separation of powers. (Paras 36-37)
Facts of the case: Applicant sought to challenge the legality of the prorogation of Parliament and the promulgation of the Emergency (Essential Powers) Ordinance 2021, arguing that it was unconstitutional and unlawful. (Paras 2-7)
Findings of Court: The court reiterated that the constitutional provisions at issue were valid, closing any doors for judicial review regarding the advice given by the Cabinet, indicating it would not engage with the merits at this point. (Paras 25-26)
Issues: The main questions addressed were the constitutionality of articles 150(6) and (8) of the Federal Constitution, and whether the Cabinet’s advice to the Yang di-Pertuan Agong was subject to judicial review. (Paras 8-9)
Ratio Decidendi: The court concluded that legislative provisions protecting emergency laws from judicial review reflect the will of Parliament to prevent the judiciary from interfering in matters that involve national security, emphasizing the separation of powers doctrine. (Paras 14-17)
Result: Application for leave dismissed as frivolous without order as to costs. (Para 42)
JUDGMENT
Introduction
[1] The applicant on 25 January 2021 filed an application for leave to commence judicial review proceedings pursuant to O 53 of the Rules of 2012 ("ROC 2012").
[2] The applicant seeks inter alia the following reliefs:
a. A declaration that the decision of the Cabinet, which was led by the Prime Minister of Malaysia, Tan Sri Dato' Muhyiddin Mohd Yassin to advise the Yang di-Pertuan Agong Al-Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah to promulgate s 14 of the Emergency (Essential Powers) Ordinance 2021 which has resulted in the prorogation and/or suspension of Parliament is unlawful, unconstitutional and therefore null and void and of no effect;
b. A declaration that the advice given by the Cabinet, led by the 1st respondent, Tan Sri Dato' Muhyiddin Mohd Yassin to the Yang di-Pertuan Agong Al-Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah to promulgate s 14 Emergency (Essential Powers) Ordinance 2021 which has resulted in the prorogation and/or suspension of Parliament was ultra vires his/their constitutional and/or statutory and/or express and/or implied duty as the Prime Minister of Malaysia and/or his Cabinet;
c. A declaration that s 14 Emergency (Essential Powers) Ordinance 2021 is unlawful and therefore null and void and of no effect;
d. A declaration that the prorogation and/or suspension of Parliament as a consequence of s 14 Emergency (Essential Powers) Ordinance 2021 is unlawful and therefore null and void and of no effect;
e. A declaration that art 150(6) of the Federal Constitution is inconsistent with arts 4, 8 and 121 of the and is as a result, unconstitutional, null and void and of no effect;
f. A declaration that art 150(8) Federal Constitution is inconsistent with arts 4, 8 and 121 and as a result, is unconstitutional, null and void and of no effect;
g. A declaration that that s 14 Emergency (Essential Powers) Ordinance 2021 is inconsistent with art 150(3) and (5) Federal Constitution and as a result, is unconstitutional, null and void and of no effect;
h. A declaration that s 18 Emergency (Essential Powers) Ordinance 2021 is inconsistent with art 4 of the Federal Constitution and as a result, is unconstitutional, null and void and of no effect;
i. An order for certiorari to quash the decision by the 1st and 2nd respondents to give the advice as stated in paras (a) and (b) above;
j. An order for mandamus directing the 1st and 2nd respondents herein to advise the Yang di-Pertuan Agong Al-Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah to revoke s 14 Emergency (Essential Powers) Ordinance 2021 forthwith;
k. No order as to costs; and
l. Any other relief and/or order deemed necessary and/or just by this honourable Court.
Brief Facts
[3] In attempt to contain and curb the spread of COVID-19, the 1st and 2nd respondents declared a Movement Control Order ("MCO") in January 2021. The said MCO declared by the Perikatan Nasional Government under the lead of the 1st respondent, was followed with a Proclamation of Emergency by the Yang di-Pertuan Agong Al-Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah on 11 January 2021, which was published in the Federal Government Gazette on 12 January 2021 as PU(A) 7/2021 ("the said Proclamation"). The Proclamation was made pursuant to art 150(1) of the Federal Constitution . Resulting from the said Proclamation, the Yang di-Pertuan Agong, pursuant to art 150(2B) of the promulgated the Ordinance.
[4] The 1st respondent in his speech dated 12 January 2021 said inter alia:
"i. Yesterday I was granted an audience with the Yang di-Pertuan Agong on 11 January 2021 to present advice by the Cabinet for His Majesty to issue a Proclamation of Emergency in accordance with art 150(1) of the Federal Constitution to declare a state of Emergency for the whole Federation effective from 11 January 2021 to 1 August 2021.
ii. After considering the advice of the Cabinet, His Majesty the Yang di- Pertuan Agong was satisfied that there wa
