KUALA LUMPUR (May 31): The referral of constitutional questions to the Federal Court by Bersih 2.0 and six other civil society groups along with the Malaysian Bar Council's question about the role of Parliament and judiciary during the state of emergency as announced by the government will be heard together.
Following case management today, High Court judge Datuk Ahmad Kamal Md Shahid has fixed July 29 to hear both applications.
The date was confirmed by lawyer New Sin Yew of Messrs AmerBon Advocates, representing Bersih 2.0 and the other civil society groups, and senior lawyer Steven Thiru, who appeared for the Malaysian Bar with Rashid Ismail.
“Yes the hearing of both applications has been fixed on July 29,” they both independently confirmed with theedgemarkets.com when contacted today.
Bersih 2.0, led by its chairman Thomas Fann, and three other non-governmental organisations (NGOs) Save Rivers Sdn Bhd, CIJ Communications Services Sdn Bhd and Suara Inisiatif Sdn Bhd, and three other individuals had filed their judicial review application by naming prime minister Tan Sri Muhyiddin Yassin and the government as respondents.
Central to the issue or question is whether the Emergency (Essential Powers) Ordinance, or Section 14 of the Ordinance, which suspends Parliament, and Article 150(8) of the Constitution, which ousts the jurisdiction of the courts, are unconstitutional.
Bersih filed 10 other questions of law to be determined by the apex court which covered four areas, namely:
- 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 Jan 11, 2021 promulgated on Jan 14, 2021 had to be laid before both Houses of Parliament pursuant to Article 150(3) of the Federal Constitution?
- Whether Section 14 of the Emergency (Essential Powers) Ordinance 2021 relating to the suspension of Parliament is valid insofar 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.) - 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)?
- 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)?
Thiru confirmed that the Bar's questions are almost similar to that of Bersih 2.0, but noted they are not the same.
“It focuses on the common issues highlighted," he said.
Muhyiddin announced the implementation of the emergency in January and the suspension of the Parliament until Aug 1.