Malaysian Bar says Emergency Ordinance unconstitutional, overbroad, initiates legal suit against govt

Newly elected Malaysian Bar president AG Kalidas speaks during a press conference at Malaysia Bar council building March 13,2021. — Picture by Ahmad Zamzahuri
Newly elected Malaysian Bar president AG Kalidas speaks during a press conference at Malaysia Bar council building March 13,2021. — Picture by Ahmad Zamzahuri

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KUALA LUMPUR, April 16 — The Malaysian Bar has initiated legal proceedings against the Malaysian government seeking five court declarations against provisions within the Emergency (Essential Powers) 2021 Ordinance (EO) they claim are either overbroad or unconstitutional.

A statement issued by Bar president AG Kalidas today noted how the issuance of these Emergency Ordinances has created an imbalance between the levels of power and accountability they are subjected to.

“The Emergency Ordinances have resulted in more powers being conferred on the Executive, while constitutional safeguards such as Parliamentary scrutiny and accountability, have been reduced. 

“It is important that under all circumstances, the rakyat is not deprived of the fundamental protections and procedural safeguards enshrined in our Federal Constitution,” Kalidas wrote.

The statement outlined the six reliefs being sought at the High Court by the bar; the first for a declaration that certain provisions in the Federal Constitution that relate to the proclamation of an Emergency, in its literal interpretation, are overbroad and unconstitutional, and inconsistent with the fundamentals of the Federal Constitution.

The second prayer is for a declaration that, pursuant to Article 150(3) of the Federal Constitution, the Prime Minister and, or, the federal government are under a constitutional duty to offer advice to the Yang di-Pertuan Agong to summon a meeting of Parliament for the Proclamation of Emergency and the ordinances promulgated with it to be debated in both Houses of Parliament

“And for all necessary and appropriate resolutions to be passed; and, an order directing the Prime Minister to forthwith lay the same before both Houses of Parliament,” he wrote.

Their third prayer is that Sections 5, 11(a) and (b), 14, 15, and 18 of the EO are unconstitutional, while being inconsistent and in breach of the Federal Constitution, and as such, should be declared invalid, null, void in law, and of no legal effect.

Section 5 relates to a RM500,000 and maximum two-year imprisonment punishment for those found guilty of creating, spreading, offering, and publishing fake news under the EO, while section 11 (a) and (b) relates to the boundaries of power held by the legislative and executive branches.

Meanwhile, provisions of Section 14 and 15 relate to the suspension of all orders to summon, prorogue, and dissolve both the Parliament and state legislative assemblies, and Section 18 which effectively nullifies any prevailing law that comes into conflict with the EO and that it will supersede other provisions of the law so long it remains in effect.

The Bar’s fourth prayer seeks for Section 4 and 24 of the amended EO also to be declared as unconstitutional, in breach of the Federal Constitution and therefore void and of no legal effect.

Section 4 relates to the offence of creating, spreading, offering, and publishing fake news which has come under fire for supposedly stifling freedom of speech, and Section 24 relates to an accused person who is compelled to present a defence statement even before a trial has commenced.

Their final prayer is for amended provisions, particularly Section 2 and Sections 10A and 10B, to also be declared unconstitutional and therefore invalid.

Section 2 relates to the interpretation of what is considered spreading fake news which involves disseminating information via printed or digital means.

Meanwhile, Section 10A and 10B is the provision that allows the federal and state governments a free reign over its coffers with expenditures not needing to be scrutinised and passed through in Parliament to state assembly so long the Emergency remains in effect.

Malay Mail is seeking to confirm when the suit was filed at the High Court.

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