KUALA LUMPUR: Political experts believe that opposition leader Datuk Seri Anwar Ibrahim’s bid to get members of parliament to appeal to Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah to retract the state of emergency and allow Parliament to convene will be unsuccessful — at least for now.
This, they said, was due to the fact that the king’s decision in invoking the emergency provision cannot be challenged in any legal way, and that the yet-to-be-established Independent Special Committee, which will advise the king on the subject, will have a say on when the Emergency should be lifted.
National Professors Council chairman Professor Datuk Dr Shamsul Amri Baharuddin said that there was nothing Anwar could do while the recently gazetted Emergency (Essential Powers) Ordinance 2021 was in place.
“The Emergency declaration and ordinance are two different things. The king can revoke the Emergency declaration, but only before the ordinance is gazetted.
“Anwar can ask the king to revoke the declaration, but that is not enough because the king has to revoke the ordinance too.
“Now that the ordinance has been gazetted, Anwar will have to wait another six months or whenever the ordinance is de-gazetted, if he wants to challenge this.
“It is also important to note that Article 150(8) of the Federal Constitution says that the Yang di-Pertuan Agong’s satisfaction cannot be challenged in any court,” he told the New Straits Times.
Al-Sultan Abdullah, on Jan 12, consented to proclaiming a state of emergency nationwide until Aug 1. The Emergency Ordinance was gazetted two days later.
Professor Dr Sivamurugan Pandian from Universiti Sains Malaysia said he was not convinced that Anwar could do anything to legally challenge the king’s decision, but noted that the opposition leader may have other moves of his own.
“Anwar would have consulted his legal team before making this decision, but I don’t see how he can challenge this legally because it has been proclaimed and the ordinance has been gazetted.
“So what is the point in challenging something legally when it will not favour him? It’ll be interesting to find out the reason. But I don’t see this happening any time soon.”
However, one constitutional expert, speaking to the NST on the condition of anonymity, cited the United Kingdom’s R (Miller) v The Prime Minister 2019 case, also known as the Miller II case, when asked on the possibility of Anwar succeeding in his bid.
The Miller II case was a landmark constitutional law case on the limits of the royal prerogative to prorogue the UK Parliament. This happened after UK Prime Minister Boris Johnson advised the Queen of England to prorogue Parliament.
Those unhappy with Johnson’s advice to Queen Elizabeth took the prime minister to court and on Sept 24, 2019, the UK Supreme Court, in a unanimous decision by 11 justices, found that the matter was justiciable and that Johnson’s advice was unlawful.
As a result, the Order in Council permitting the prorogation was nullified and of no effect, and Parliament had not been prorogued.
The constitutional expert explained that if Anwar planned to challenge the king, he would have to go to the High Court.
“The court would then take note of Article 150(8) of the Federal Constitution and say there is no judicial review to the proclamation.
“If we take the Miller II case, at the time, Johnson was worried that the members of the House of Commons would reject his proposal on Brexit, which was why he gave the advice to the Queen to prorogue Parliament. Basically, he sent everyone on holiday.
“Some people challenged Johnson’s advice. Bear in mind, they did not challenge the Queen, only the prime minister’s advice to her and they won.
“This could be the approach Anwar is considering, which is to protect the king’s decision but, at the same time, challenge Prime Minister Tan Sri Muhyiddin Yassin’s advice to the king.”
Muhyiddin had sought the king’s consent to institute emergency measures last year, but the king, on Oct 25, rejected the move.-NST