KUALA LUMPUR: The hearing for Opposition leader Datuk Seri Anwar Ibrahim's lawsuit against Prime Minister Tan Sri Muhyiddin Yassin on the latter's advice to the Yang di-Pertuan Agong to promulgate an Ordinance which effectively suspends the Parliament will begin on Feb 10.
Anwar's lawyer Ramkarpal Singh said the expedited date for the leave application was obtained after his team filed for a certificate of urgency at the high court recently.
According to Ramkarpal, he is expecting the case to be concluded in two to three months, much earlier before the current state of emergency ends on Aug 1.
The upcoming case, he said, will be based on the United Kingdom's R (Miller) v The Prime Minister 2019 case and the Cherry v Advocate General for Scotland case, also known as the Miller II and Miller/Cherry cases.
The Miller II and Miller/Cherry cases were joint landmark constitutional law cases 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 in Aug 2019.
"I think it is quite a good and arguable case and I think we can apply this in Malaysia. I am fairly confident that we can get a good result. It is important to note that we are not challenging the Agong at all," he told the New Straits Times.
To avoid the UK's House of Commons from rejecting his proposal on Brexit, Johnson formally advised Queen Elizabeth II to prorogue the Parliament in which the Monarch accepted his advice.
On Sept 24, 2019, the UK Supreme Court, in a unanimous decision by 11 justices, found that Johnson's advice to the Queen was unlawful.
As a result, the Order in Council permitting the prorogation was nullified and of no effect, and Parliament was not prorogued.
Constitutional Expert Prof Datuk Dr Shad Saleem Faruqi when contacted explained that there were three main issues raised in the Miller II and Miller/Cherry cases.
"(First) Was the lawfulness of the Prime Minister's advice to the Queen reviewable by the courts? (Second) What are the limits to the power to advise the Queen to prorogue Parliament?
"(Third) Did this prorogation have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification?"
On the first issue for consideration, Shad said it was held that there was no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power.
"The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the government for centuries, as long ago as 1611. The lawfulness of the Prime Minister's advice to the Queen was therefore determined justiciable," he said.
On the second issue, Shad said it was ruled that a decision to prorogue or advising the monarch to prorogue will be unlawful if the prorogation has the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions as a legislature and as the body responsible for supervising the executive.
"In light of the third issue, it was ruled that this was not a normal prorogation. It prevented Parliament from carrying out its constitutional role between the end of the summer recess and the Brexit deadline on Oct 31 (2019)."
While prorogued, it was stated that neither the UK's Upper nor Lower House could meet or pass legislation or debate government policy, Shad said.
"The exceptional circumstances of the prorogation were also considered, in that it took place during a time of fundamental change to the UK constitution with the Oct 31 exit day.
"It was ruled that Parliament had a right to a voice in how that change comes about."
Despite all the arguments presented in the Miller II and Miller/Cherry cases, it is important to note that the two cases did not happen during a state of emergency or after an emergency ordinance was gazetted.
Asked if this could affect Anwar's bid in succeeding in his case, Shad did not dismiss the possibility.
"Yes, the Miller cases happened under normal circumstances and we are in an emergency state now. Of course, there is no war or bombing but my God, people are dying, losing jobs and living in shambles.
"I wouldn't be surprised if the court decides to differentiate between the circumstances during the Miller cases and our current circumstances," he said.
At the same time, Shad also pointed out that out of the four times Malaysia has declared an emergency in the past - in 1964, 1966, 1969 and 1977 - the Parliament was only suspended once following the 1969 racial riots.
"Declaring an emergency and suspending Parliament are two different things. As mentioned earlier in the Miller cases, Parliament has constitutional functions as a legislature and as the body responsible for supervising the executive."
Prominent lawyer Haniff Khatri Abdulla was of the opinion that any bid to challenge Muhyiddin's advice to the Yang di-Pertuan Agong, whether by Anwar or any other parties, has a good chance at winning.
He pointed to Article 150(8) of the Federal Constitution which states that the King's satisfaction on the proclamation, the continuation of the proclamation, the promulgation of an ordinance or the continuation of such ordinance cannot be challenged in any court on any ground.
However, the Federal Constitution made no mention that a prime minister's advice to the Monarch cannot be challenged and according to Haniff, advising the King as a prime minister means that Muhyiddin must be a legitimate premier.
Muhyiddin's legitimacy, he said, could be argued with the 26 motions of no confidence submitted to the Dewan Rakyat against the prime minister since last year and on top of that, a few government-friendly members of parliament had revoked their support for the Perikatan Nasional government recently.
"In Anwar's case, is he directly challenging the Agong's emergency? No. He is challenging the advice given by Muhyiddin, that the prime minister does not have the legitimacy to advise the King.
"Anyone can go to the King and say 'let's declare an emergency' and the King may take that advice if he is satisfied with the reasons given but to advise the King as a prime minister, you must have the majority in the People's House.
"Without it, you have no constitutional legitimacy," he said.
Yang di-Pertuan Agong Al-Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah, on Jan 11, consented to proclaiming a state of emergency nationwide until Aug 1. The Emergency Ordinance was gazetted two days later.
This was the second time Muhyiddin had sought the King's consent to institute emergency measures. The first time was on Oct 25, 2020, where Al-Sultan Abdullah rejected Muhyiddin's request.