In lawsuit, court asked if a PM who has lost majority can suspend Parliament, advise Agong to declare Emergency

Datuk Seri Khairuddin Abu Hassan, who in the past was a member of Muhyiddin’s Parti Pribumi Bersatu Malaysia and subsequently a member of Parti Amanah Negara, had last July withdrawn from Pakatan Harapan. — Picture by Yusof Mat Isa
Datuk Seri Khairuddin Abu Hassan, who in the past was a member of Muhyiddin’s Parti Pribumi Bersatu Malaysia and subsequently a member of Parti Amanah Negara, had last July withdrawn from Pakatan Harapan. — Picture by Yusof Mat Isa

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KUALA LUMPUR, Jan 18 — Datuk Seri Khairuddin Abu Hassan today filed a lawsuit against Tan Sri Muhyiddin Yassin and the Malaysian government, in his bid to have the courts decide whether a prime minister who no longer has the majority support of MPs in the Dewan Rakyat can still advise the Yang di-Pertuan Agong to proclaim an Emergency or can still suspend Parliament sittings.

Khairuddin, who was a Batu Kawan Umno vice-chief until 2015, in his lawsuit asked the High Court in Kuala Lumpur to hear and decide four important constitutional questions.

Based on court papers sighted by Malay Mail, one of the questions asked by Khairuddin was whether advice — by a prime minister who had lost the confidence of the majority of the members of the Dewan Rakyat — to propose to the Yang di-Pertuan Agong for a declaration of Proclamation of Emergency is invalid and unconstitutional.

The second question asked was whether advice by the prime minister — to the Yang di-Pertuan Agong for a declaration of Proclamation of Emergency was made “in fraudem legis” or in fraud of the law, when the prime minister at the time of giving the advice had lost the confidence of the majority of the Dewan Rakyat members to remain as prime minister.

The third question asked was whether the decision of a Cabinet — led by a prime minister who has lost the confidence of the majority of the Dewan Rakyat members — to propose a declaration of Proclamation of Emergency to the Yang di-Pertuan Agong is invalid and unconstitutional.

The fourth and final question asked was whether the suspension of Parliament sittings up to August 1, 2021 by a prime minister who has lost the confidence of the majority of the Dewan Rakyat members is invalid and unconstitutional.

In his affidavit to support his lawsuit filed in court today, Khairuddin said this case is a public interest litigation aimed at defending the Federal Constitution, parliamentary democracy and the rule of law.

Khairuddin noted that the number of MPs required to achieve simple majority in the 222-seat Dewan Rakyat is currently only 111 instead of the usual 112, as there are now only 220 MPs and two seats vacant with the Batu Sapi MP and Gerik MP having died last year.

But noting Umno’s Machang MP Datuk Ahmad Jazlan Yaakob’s January 9 withdrawal of support towards Muhyiddin as prime minister, Khairuddin said this allegedly resulted in Muhyiddin from that day onwards only having 110 MPs supporting them.

He concluded that this meant that Muhyiddin had on January 9 lost the majority support of Dewan Rakyat MPs required for him to remain as prime minister.

In his affidavit, Khairuddin then went on to argue that Muhyiddin’s January 11 advice to the Yang di-Pertuan Agong for Emergency declaration was invalid and unconstitutional, as he was at that time allegedly no longer a valid prime minister after having lost majority support and as he did not have the legitimacy to give such advice to the ruler for the calling of an Emergency.

Khairuddin also claimed that Muhyiddin’s January 11 advice to the ruler was allegedly only intended to obtain a Proclamation of Emergency solely for Muhyiddin’s political continuity by remaining as the prime minister, and also arguing that it was wrong for Muhyiddin give the option then of calling an Emergency to the ruler as the public had the day before already heard of a movement control order (MCO).

The Proclamation of Emergency by the Yang di-Pertuan Agong on the advice of the Muhyiddin-led Cabinet was gazetted on January 12, and deemed to have taken effect from January 11 to August 1.

Following the Emergency declaration on Malaysia, the Emergency (Essential Powers) Ordinance 2021 — which suspends all elections and the sitting of Parliament — was gazetted by the government on January 14 and also deemed to have taken effect from January 11 onwards.

Khairuddin said the Emergency ordinance’s provisions has caused a “serious constitutional crisis”, arguing that the provision to suspend Parliament sittings is allegedly an attempt by Muhyiddin to “circumvent” or bypass Article 43(4) of the Federal Constitution.

Article 43(4) states that the prime minister shall tender the resignation of the Cabinet if the prime minister ceases to command the confidence of the majority of the members of the Dewan Rakyat, unless the Yang di-Pertuan Agong dissolves Parliament at his request. (The Federal Constitution requires general elections to be held within 60 days of Parliament’s dissolution.)

“Besides that, such a constitutional crisis is unprecedented in the country’s history where a prime minister who has lost the confidence of the majority of the Dewan Rakyat members had advised the Yang di-Pertuan Agong to declare Proclamation of Emergency to maintain his position as prime minister,” Khairuddin claimed in his affidavit.

Khairuddin said the courts’ legal and constitutional guidance on the constitutional crisis is necessary, while also arguing that the events since January 11 to the gazetting of the Emergency ordinance has opened up a bad precedent that could be used by prime ministers in the future to stay on in power despite losing majority support unless it is corrected.

The court papers for Khairuddin’s lawsuit did not mention any political affiliation. He is understood to have filed the case as a Malaysian citizen.

Khairuddin, who in the past was a member of Muhyiddin’s Parti Pribumi Bersatu Malaysia and subsequently a member of Parti Amanah Negara, had last July withdrawn from Pakatan Harapan.

Khairuddin, who is known to be a loyalist to Parti Pejuang Tanah Air (Pejuang) chairman Tun Dr Mahathir Mohamad, is not currently known to have any affiliation to any political party.

Separately, Khairuddin in a statement said he had instructed his lawyer Muhammad Rafique Rashid Ali to file the lawsuit today, but stressed that his court challenge is not related to the Yang di-Pertuan Agong as he holds the Malay rulers in high regard as a Malaysian citizen.

Khairuddin explained that his main intention in filing the lawsuit was to ask the judiciary’s opinion on whether a prime minister who has lost majority support or lost legitimacy has the locus standi or legal standing to advice the Yang di-Pertuan Agong to declare an Emergency in Malaysia.

“Honestly, I do not at all dispute any form of powers that are vested in the Yang di-Pertuan Agong as enshrined in our country’s Constitution,” he said in his statement in his capacity as the former parliamentary coordinator for the Jasin seat in Melaka.

Khairuddin had in July 2020 left Parti Amanah Negara and also resigned from his role as Amanah’s parliamentary coordinator for Jasin. He had in the 2018 general elections contested under Amanah in the Jasin seat but lost in a three-corner fight to Umno’s Datuk Seri Ahmad Hamzah.

Just a day before Khairuddin’s lawsuit today, 10 former presidents of the Malaysian Bar had also issued a statement to caution of the “dangerous precedent” in the current federal government’s successful push for the Emergency declaration allegedly without meeting the conditions provided in the Federal Constitution.

Also voicing concern over the Emergency ordinance which they said gave the government sweeping powers without the necessary checks and balances by the courts and Parliament, the 10 prominent lawyers had yesterday urged for both the Proclamation of Emergency and the ordinance to be tabled in Parliament to be scrutinised.

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