Lawyer seeks Federal Court ruling on constitutional challenge of Agong's discretion

Lawyer seeks Federal Court ruling on constitutional challenge of Agong's discretion
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KUALA LUMPUR (Jan 22): The lawyer who filed an originating summons to the High Court to determine the Yang di-Pertuan Agong's discretion in deciding whether or not to declare a state of emergency, has filed an application to the Federal Court to ascertain whether it can be challenged.

Lawyer Dr Syed Iskandar Syed Jaafar is seeking to question Article 150 of the Federal Constitution, namely clauses 8 and 9, as he claims it is violative of the basic structure of the Federal Constitution regarding Article 4(1) of said constitution.

Article 4(1) states: This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

Article 150 clause 8 states: 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 or called in question in any court on any ground; and
(b) no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground.

Clause 9 of the same Article 150 states: For the purpose of this Article the Houses of Parliament shall be regarded as sitting only if the members of each House are respectively assembled together and carrying out the business of the House.

The cause papers sighted by show that the application, under Section 84 of the Judicature Act, was filed online by Messrs R Kengadharan & Co at the High Court registry yesterday.

The provision in the judicature act allows the High Court to transfer an issue regarded as constitutional importance to the Federal Court.

In his originating summons last year to the High Court, Syed Iskandar had posed two questions of law to be determined by the court, namely:

  • whether on a true construction of Article 40 and 150 of the Federal Constitution, the Agong has an unfettered discretion not to declare an emergency despite the advice of the prime minister or Cabinet in the contrary
  • whether Act 514 (Occupational Safety and Health Act 1994) which amended Article 150 by adding clauses (8) and (9) is violative of the basic structure of the constitution having regard to Article 4(1).

Syed Iskandar is only seeking the Federal Court to determine the second legal question and has abandoned the first.

“I also respectfully state that the aforementioned conflicting decisions render it necessary for the one question to be transmitted and determined by the Federal Court for the sake of the certainty of the law and to uphold the Federal Constitution as well as the principles of judicial precedent and judicial courtesy,” he said.

In a press statement last year, Syed Iskandar said he filed the action to ensure that anyone who becomes prime minister will not face problems while dealing with those who are supposed to guard the Constitution when bills are sent for Royal Assent.

Yesterday, the government filed an application in the High Court to quash Syed Iskandar’s challenge.

In its application, the government claims that the lawsuit is “scandalous, frivolous and vexatious”, and an “abuse of the court’s process”.

Solicitor-General Datuk Abdul Razak Musa of the Attorney-General’s Chambers also filed an affidavit in support of the government’s striking-out bid which was sighted by

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