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We ask the law minister: Access to justice seeking popularity?

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The de facto law minister chided the Bar Council and other law practitioners for not agreeing with the proclamation of emergency.

By challenging the emergency, he said, they are not acting in accordance with the law and, astoundingly, that they are distorting the law to suit their leanings and as a way to raise their popularity. He implied that they should, instead, support the emergency.

This statement, coming from no less than one in charge of the law ministry, is incredulous – at so many levels.

First, he fails to recognise that the challenge to the proclamation of emergency is grounded on the argument that there is a clear violation of the Federal Constitution. Article 150 of the Constitution mandates that the proclamation and the ordinances enacted under it be laid before Parliament. And Parliament has the widest power to make law “with respect to any matter” during the proclamation, as the Privy Council confirmed in Stephen Kalong Ningkan v Government of Malaysia [1968]. All this thwarted by the suspension of Parliament and the state assemblies.

Meaning that the executive has now unlimited power to rule by decree. So, for example, all the billions to be dished out will not be subject to the scrutiny of the people’s elected representatives. As the UK Supreme Court ruled recently [R (Miller) v Prime minister (2019)], when declaring as unlawful the British prime minister adjourning Parliament prematurely: “A decision to prorogue (or advise the monarch to prorogue) Parliament to carry out its constitutional functions will be unlawful if the prorogation has the effect of frustrating or preventing without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.” And it is for the court to decide whether the explanation for doing so is a reasonable justification.

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Second, he fails to recognise that questioning allegedly ‘wrongful’ government action is a fundamental pillar of a functioning democracy. Surely, it is through dialectical discourse that ideas are spun around and indeed tested – to right the unrightable wrongs, to paraphrase the famous Don Quixote de la Manca.

Third, he fails to realise that recourse to the courts for seemingly constitutional violations is a fundamental construct of the rule of law – where competing contestations, including those of the kind voiced by the law minister, are tested. And it is for the court to evaluate the justification by the government for suspending Parliament. Ultimately, it is the role of an independent judiciary to keep government actions within the legal limits of power.

Fourth, he fails to realise that access to justice (via courts) has long been recognised by our Federal Court as a fundamental right: Public Prosecutor v Gan Boon Aun (2017).

Fifth, he fails to realise that fundamental rights cannot be willy-nilly suspended, especially as in this case, for an indeterminate period. An unlimited power of suspension would be incompatible with the legal principle of parliamentary sovereignty, as declared Baroness Hale of the UK Supreme Court in Miller’s case.

Finally, we say, with utmost respect, that the minister has done little more than expose his disdain for the rule of law, the Constitution and our established legal processes.

Dato’ Dr Gurdial Singh Nijar is president of Hakam

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