KUALA LUMPUR, Jan 18 — Langkawi MP Tun Dr Mahathir Mohamad and four other lawmakers from his Pejuang party are now seeking to be part of a constitutional court challenge regarding the Yang di-Pertuan Agong’s discretion to refuse to declare an Emergency.

The four others who are seeking to be interveners are Pejuang president and Jerlun MP Datuk Seri Mukhriz Mahathir, Pejuang secretary-general and Kubang Pasu MP Datuk Amiruddin Hamzah, Sri Gading MP Datuk Shahruddin Md Salleh, as well as Pejuang deputy president and Dewan Negara lawmaker Datuk Marzuki Yahya.

Dr Mahathir who is also Pejuang chairman and the four others had on January 12 jointly filed an intervener application to ask the High Court in Kuala Lumpur to allow them to be part of lawyer Syed Iskandar Syed Jaafar’s lawsuit against the Malaysian government.

In the January 12 court papers sighted by Malay Mail, Dr Mahathir and the four had explained their application to get the court’s leave or permission to be part of the lawsuit.

Among other things, the five Pejuang lawmakers argued that they have the constitutional rights to be part of the lawsuit in order to fulfill their constitutional oaths of protecting and defending the Federal Constitution.

The five also argued that they would be the ones most affected by any decision of the court in this lawsuit, including in terms of their constitutional rights under the Federal Constitution’s Article 62 and Article 63 to debate and vote on any drafting and amendments of law and to voice out for voters in the Dewan Rakyat and Dewan Negara.

The five also said that their position as members of Parliament would enable them to help the court to decide on the important constitutional matters raised in the lawsuit, and argued that their status as MPs meant they have the legal rights to help the court interpret constitutional matters.

Apart from that, they argued that they have the constitutional right as MPs to provide testimony in court to help the High Court decide on the law, and that they as MPs have the legal obligation to protect the Federal Constitution.

"The proposed interveners as MPs have legitimate interest and legal interest to be made parties to this Originating Summons action,” the five said when referring to themselves.

Malay Mail also sighted a separate application by the five for their intervener application to be heard before or by February 18 to preserve their rights.

In the application by lawyer Muhammad Rafique Rashid Ali who represents the five, he noted that the High Court had already fixed February 18 to hear four other applications others also seeking to be interveners in the lawsuit. 

The four other intervener applications are by Malaysian Muslim Lawyers Association secretary-general Ridha Abdah Subri; lawyer Mohd Khairul Azam Abdul Aziz and Malcolm Fernandez; Nazira Abdul Rahim; and Centre For a Better Tomorrow.

In the application, Rafique had said his five clients’ intervener application should be expedited as the constitutional issues in the lawsuit involve public interest and should be decided quickly, and as his clients’ rights as members of Parliament would be affected if their intervener application was not heard earlier or by February 18.

When contacted, Rafique confirmed the filing of the court documents on January 12, and said the sealed copies will be served to the parties in the lawsuit.

"We are awaiting the sealed copies to be extracted before serving on parties concerned,” he told Malay Mail.

In Syed Iskandar’s lawsuit filed on October 30, 2020, the lawyer had noted the Yang di-Pertuan Agong’s October 25 refusal to declare an Emergency as sought by the prime minister on October 23, describing this as the ruler’s "rejection of the prime minister’s advice” for an Emergency to be declared.

Syed Iskandar had in court papers claimed that the Yang di-Pertuan Agong had exercised his functions in a manner inconsistent with the Federal Constitution’s Article 40 and Article 150 when declining to act on the advice of the prime minister or Cabinet.

In his lawsuit, Syed Iskandar had posed two questions of constitutional and public importance for the court to decide, including whether the Yang di-Pertuan Agong has an "unfettered discretion” not to declare an Emergency despite the advice of the prime minister or Cabinet for an Emergency declaration, based on a true construction of Article 40 and Article 150 of the Federal Constitution.

The second question was on whether whether Act A514 (Constitution (Amendment) Act 1981) which amended the Federal Constitution’s Article 150 by adding clauses (8) and (9) is violative of the basic structure of the Federal Constitution, when the Federal Constitution’s Article 4(1) is taken into account.

Months after the October 2020 events and the filing of Syed Iskandar’s lawsuit, the Yang di-Pertuan Agong on January 12 announced an Emergency on Malaysia, just a day after Prime Minister Tan Sri Muhyiddin Yassin presented the ruler with the Cabinet’s advice for an Emergency to be declared.

The Proclamation of Emergency nationwide was gazetted on January 12 and deemed to be in effect from January 11 to August 1, while the Emergency (Essential Powers) Ordinance 2021 — which suspends all elections and the sitting of Parliament — was gazetted on January 14 and also deemed to have taken effect from January 11 onwards.