In this article, Tan Kian Leong explores an alternative approach to a legal challenge to a government’s attempt to establish emergency rule.
The Yang di-Pertuan Agong’s statement disagreeing with the government view as to the necessity of emergency rule appears to have put the latest period to Malaysia’s latest political saga to an end. Yet, the events that have transpired have spawned numerous constitutional questions, the most prominent of which being whether a Proclamation of Emergency can be invalidated by the courts.
A previous article on this blog raised the possibility of a head-on challenge to the effectiveness of article 150(8) of the Federal Constitution, which purports to oust judicial review of a decision to issue a Proclamation of Emergency.
This article explores an alternative route to mounting such a challenge by applying Anisminic in interpreting article 150(8) and identifying the limits within which it is to operate. Adopting the UKSC’s approach in Cherry/Miller II, it will be argued that if the Prime Minister’s advice to the Yang di-Pertuan Agong has no reasonable justification, it is unlawful and thus renders the Proclamation ineffectual.
The article 150(8) ouster clause
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”.
Article 150(8) of the Constitution goes on to provide that:
(8) Notwithstanding anything in this Constitution—
(a) the satisfaction of the Yang di-Pertuan Agong mentioned in Clause (1) and Clause (2B) shall be final and conclusive and shall not be challenged or called in question in any court on any ground; and
(b) no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of—
(i) a Proclamation under Clause (1) or of a declaration made in such Proclamation to the effect stated in Clause (1);
(ii) the continued operation of such Proclamation;
(iii) any ordinance promulgated under Clause (2B); or
(iv) the continuation in force of any such ordinance.
A plain reading suggests that article 150(8) completely prevents the possibility of judicially reviewing a decision to issue a Proclamation of Emergency.
Interpreting ouster clauses
However, the interpretation ouster clauses and determinations as to their effect, are matters for the courts. Since the seminal House of Lords decision in Anisminic v Foreign Compensation Commission [1969] 2 AC 147, the English approach has grown increasingly averse to effectuating ouster clauses. As Lord Reid famously held:
If the draftsman or Parliament had intended to…prevent any inquiry even as to whether the document relied on was a forgery, I would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any court of law. Undoubtedly such a provision protects every determination which is not a nullity…
… [T]here are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. …
… [I]f they reach a wrong conclusion as to the width of their powers, the court must be able to correct that—not because the tribunal has made an error of law, but because as a result of making an error of law they have dealt with and based their decision on a matter with which, on a true construction of their powers, they had no right to deal. If they base their decision on some matter which is not prescribed for their adjudication, they are doing something which they have no right to do and, if the view which I expressed earlier is right, their decision is a nullity. (emphasis added)
More recently, the issue of ouster clauses and Anisminic was revisited in the Supreme Court decision of R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22. In his majority judgment, Lord Carnwath cemented the role of the court in determining the limits of ouster clauses within the constitutional principle of the rule of law:
[131] … [I]t is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review.
[132] This proposition should be seen as based, not on such elusive concepts as jurisdiction (wide or narrow), ultra vires, or nullity, but rather as a natural application of the constitutional principle of the rule of law (as affirmed by section 1 of the 2005 Act), and as an essential counterpart to the power of Parliament to make law. The constitutional roles both of Parliament, as the maker of the law, and of the High Court, and ultimately of the appellate courts, as the guardians and interpreters of that law, are thus respected…
Taking this line of reasoning to its conclusion, his Lordship went on to state, obiter, that:
[144] … I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.
Privacy International is merely the latest in a line of cases showing judicial resistance against the courts’ powers of review being ousted through legislation. Whilst such provisions may exist, it is ultimately up to the courts to determine their limits on the basis of the rule of law.
Can the Anisminic approach be applied in Malaysia?
In a hypothetical case where article 150(8) is invoked, should the Malaysian courts adopt such an approach to its interpretation? Zainun Ali FCJ’s judgment for a unanimous Federal Court in Indira Gandhi v Pengarah Jabatan Agama Islam Perak [2018] 1 MLJ 545 certainly offers some support for it. At paragraph 33, echoing Lord Carnwath’s invocation of the rule of law she noted that:
Inherent in these foundational principles [in Westminster constitutions] is the role of the Judiciary as the ultimate arbiter of the lawfulness of state action. The power of the courts is a natural and necessary corollary of the rule of law. In many jurisdictions this was made clear. In Malaysia, in the seminal decision of the Federal Court in Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135, Raja Azlan Shah Ag CJ (as his Royal Highness then was) expressed in a passage which has remained inviolable, that:
… Unfettered discretion is a contradiction in terms. Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint, where it is wrongly exercised, it becomes the duty of the court to intervene. The courts are the only defence of the liberty of the subject against departmental aggression.
Taken together, therefore, there is good precedent for the courts not to take article 150(8) at face value. Rather, it appears that constitutional principles require the courts to engage critically with it and, applying Anisminic, identify the limits within which it is to operate.
Miller II: A Way In?
The express language of article 150(8) makes it clear that a judicial review of the Proclamation itself is not possible, but the effect of Anisminic would be to allow the courts a way around this (seemingly) absolute restriction. This would make it a viable alternative to challenging the effectiveness of the provision head-on, and the issues that such a challenge would raise.
For a challenge to have any hope of success, therefore, one will have to look elsewhere beyond the Proclamation itself – and it is here that the UK Supreme Court decision in R (Miller) v Prime Minister [2019] UKSC 41 (‘Miller II‘) offers us a lifeline.
In that case, the decision to prorogue Parliament was made by the advice of the Prime Minister to Her Majesty the Queen, who acquiesced to that request as per convention. This parallels a possible hypothetical situation in Malaysia, where article 150(1), read together with article 40 of the Constitution, requires that the Agong act in accordance with any advice given to His Majesty by the Cabinet – in this case, advice that a “grave emergency exists” which threatens the security, economic life, or public order of the country.
In Miller II, it was held that where the advice upon which a decision is made is illegal, the decision itself will be of no effect:
[69] This court is not, therefore, precluded by article 9 or by any wider Parliamentary privilege from considering the validity of the prorogation itself. The logical approach to that question is to start at the beginning, with the advice that led to it. That advice was unlawful. It was outside the powers of the Prime Minister to give it. This means that it was null and of no effect: see, if authority were needed, R (UNISON) v Lord Chancellor [2017] 3 WLR 409, para 119. It led to the Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect. (emphasis added)
In determining the advice to be illegal, the court considered whether the Prime Minister had reasonable justification for an action that had the effect of frustrating the constitutional role of Parliament in holding the Executive to account: paragraphs 58 – 61 of Miller II. As no attempt at justification was made by the Executive, it was hence bound to rule that there was no reasonable justification.
Applying the same analysis to our hypothetical future and adding a further qualification in the form of article 150(1)’s criteria, the modified Miller II question becomes: what reasonable justification on the grounds of a grave emergency involving a threat to the security, economic life, and public order in the country/any part thereof would there be for a Proclamation of Emergency?
In the hypothetical case of the Prime Minister advising the Agong to issue such a proclamation in the context of the present, COVID-beset Malaysia, two things are worth noting.
First, as many have pointed out, whilst the COVID-19 pandemic is itself an exceptional circumstance, the provisions of the Prevention and Control of Infectious Diseases Act 1988 are far more than sufficient to deal with concerns over public health. Indeed, Malaysia’s relatively successful track record at handling the pandemic thus far in comparison to many other countries leads one to just such a conclusion.
Second, whilst it may be argued that the recent circumstances of political turmoil combined with the ongoing pandemic are collectively a ‘grave emergency’, it is difficult to rationalise the corresponding existence of a threat to the country’s security, economic life, or public order.
It would seem, therefore, that any advice from the Prime Minister to the Agong will fall short of being a reasonable justification to issue such a Proclamation. It follows, then, that the Prime Minister’s advice would be illegal, and thus render the Proclamation ineffectual.
Why Anisminic/Miller II over a direct challenge to article 150(8)
A final point remains to be made over the benefits of opting for an Anisminic/Miller II challenge over that of the direct attack against the effectiveness of article 150(8) in the previous article. In couching the terms of a challenge in this manner, a prospective applicant is able to avoid two particularly contentious issues.
First, and most obviously, it avoids any discussion over the (un)constitutionality of article 150(8), effectively sidestepping a highly contentious matter that could easily divide a court hearing the review, and becoming a rock upon which the applicant’s ship flounders.
Secondly, adopting the reasoning in Miller II would save the court from having to declare that the Agong’s Proclamation was itself unlawful. Instead attention shifts onto the (un)lawfulness of the Prime Minister’s advice which article required the Agong to follow. In doing so, the court avoids having to make uneasy statements about His Majesty’s decision, once again dodging a highly-charged issue the courts (and potential applicants) would be sensible steer clear of.
Whether a Proclamation of Emergency will ultimately be issued remains to be seen at this point in time, but it appears that for now, the Agong has deemed it unnecessary. If the Prime Minister chooses to double down on his request and make it formal advice to His Majesty, however, commentaries such as this will be canaries in a constitutional coal mine, laying out the fault lines for a legal battle that may yet occur.
In the end, it may very well be that in issuing a Proclamation the government catapults itself from a political crisis into a constitutional one. A grave emergency, to be sure – just not the one they bargained for.
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Tan Kian Leong is a final-year Law student at University College London. He is interested in constitutional and human rights law, particularly on the issue of statelessness.
The author thanks Shukri Shahizam for his advice and assistance with this piece. Any errors and oversights are the author’s alone.