Agong’s power to proclaim emergency not justiciable by court — High Court Judge

KUALA LUMPUR, Feb 15: The High Court here today ruled that the power of the Yang di-Pertuan Agong in proclaiming the Emergency under Article 150 of the Federal Constitution is not justiciable (or subject to trial) by the court.

Article 150(1) of the Constitution grants the Yang di-Pertuan Agong the power to issue a Proclamation of Emergency if His Majesty “is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened”. 

Judge Datuk Wan Ahmad Farid Wan Salleh, in today’s ruling on originating summons by lawyer Dr Syed Iskandar Syed Jaafar Al Mahdzar, said Article 150(8) is not violative of the basic structure of the Federal Constitution and cannot be struck down under Article 40(1), which states that the Yang di-Pertuan Agong shall act on the advice of the Cabinet.

“On the contrary, any attempt by the court to intervene will offend the doctrine of separation of powers, which is part of the basic structure of the Federal Constitution.

“While the constitutional provision in respect of the ouster clause would amount to “closing the doors of the court” looks harsh and unjust, the remedy lies in the legislature and not the courts,” he said.

The judge also dismissed the government’s application to quash Syed Iskandar’s suit over Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah’s decision in refusing to act on the advice of Prime Minister at that time, Tan Sri Muhyiddin Yassin, to declare a state of emergency.

In November 2020, Syed Iskandar as the plaintiff filed an originating summons naming the Malaysian government and 10 others as the defendants, seeking the court to determine among others, whether based on Articles 40 and 150 of the Federal Constitution, the YDPA has full discretion not to declare an emergency even if the Prime Minister or Cabinet advises otherwise.