SYED ISKANDAR BIN SYED JAAFAR v Kerajaan Malaysia (W-01(A)-178-03/2024)

RIDHA ABDAH BIN SUBRI (No. K/P: 830717-14-6131) [membawa tindakan dalam kapasiti sebagai Setiausaha Agung, serta untuk dan bagi pihak Persatuan Peguam-Peguam Muslim Malaysia (PPMM)]

MOHD KHAIRUL AZAM BIN ABDUL AZIZ (No. K/P: 770509-06-5757)

MALCOLM FERNANDEZ (No. K/P: 711030-10-6297)

NAZIRA BINTI ABDUL RAHIM (No. K/P: 660131-08-5774)

CENTRE FOR A BETTER TOMORROW (No. Syarikat: 766733-H) [formerly known as Centre for Education Opportunities]

TUN DR. MAHATHIR BIN MOHAMAD (No. K/P: 251220-02-5151)

DATO' SERI UTAMA HAJI MUKHRIZ TUN DR. MAHATHIR (No. K/P: 641125-02-5579)

DATO' WIRA HAJI AMIRUDDIN BIN HAJI HAMZAH (No. K/P: 620420-02-5915)

DATUK DR. SHAHRUDDIN BIN MD SALLEH (No. K/P: 560515-01-6155)

DATUK WIRA MARZUKI BIN YAHYA (No. K/P: 700904-02-5153) ...RESPONDEN-RESPONDEN CORAM SUPANG LIAN, J.C.A COLLIN LAWRENCE SEQUERAH, J.C.A ALWI BIN HJ. ABDUL WAHAB, J.C.A

(A) INTRODUCTION [1] The Appellant's appeal is against the decision of the Learned High Court Judge Wan Ahmad Farid Bin Wan Salleh ("HCJ") (as the Right Honourable the Chief Justice was then) given on 15.2.2024, in which the HCJ determined the following question in the Plaintiff's Amended Originating Summons dated 2.4.2021 in the negative: "Whether Act A514 which amended Article 150 by adding Clause (8) is violative of the basic structure of the Federal Constitution having regard to Article 4(1) thereof"

(B) PERTINENT BACKGROUND FACTS [2] Following a Special Cabinet Meeting on 23.10.2020, the then Prime Minister Tan Sri Muhyiddin Yassin at an audience with His Majesty the Yang Di-Pertuan Agong at Istana Abdul Aziz, Kuantan, sought His Majesty's consent for a proclamation of emergency under Article 150 of the Federal Constitution. [3] His Majesty the Yang Di Pertuan Agong ("YDPA") then agreed to discuss the said matter with the Malay Rulers at Istana Negara. On 25.10.2020, His Majesty declined the said application for an emergency proclamation.

(C) THE ISSUE TO BE DETERMINED [4] On 30.10.2020 the Appellant subsequently filed an Originating Summons against the Government of Malaysia, which eventually included all the Respondent's herein. [5] The Plaintiff then filed an Amended Originating Summons on 21.4.2021 seeking the courts determination on the following questions: 1) Whether on a true construction of Articles 40 and 150 of the Federal Constitution, the YDPA has an unfettered discretion not to declare an emergency despite the advice of the Prime Minister or the Federal Cabinet to the contrary. 2) Whether Act A514 which amended Article 150 by adding Clause (8) and (9) is violative of the basic structure of the Federal Constitution having regard to Article 4 (1) thereof. [6] The Appellant eventually did not proceed with Question 1 above while Question 2 was later amended to a declaratory relief as follows: 'A declaration that Act A514 which adds clauses 8(a) and (b) to art 150 is unconstitutional, null and void and of no effect on the ground that it violates the basic structure of the Federal Constitution'

(D) ANALYSIS AND DECISION [7] In summary, the case for the Appellant is based on the proposition that a provision that ousts the jurisdiction of a court to inquire into the validity of a law or other form of State Action violates the doctrine of separation of powers by infringing upon the judicial power of the Federation and also violates the doctrine of separation of powers which is part of the basic structure of the Federal Constitution ("FC"). [8] It is accordingly contended that the said ouster clause is unconstitutional, null and void and of no effect and that Parliament is not empowered accordingly to amend the FC to introduce ouster clauses that inhibit the judicial power of the Federation from determining the lawfulness of State Action whether done under written law or the Constitution itself. Appeal rendered academic [9] The position had been taken on behalf of some of the Respondent's that this appeal is rendered academic. [10] This is because the refusal of the YDPA initially to follow the advice of the Prime Minister to declare a state of Emergency, was later followed by the YDPA following the advice of the Prime Minister to declare a state of Emergency on 12 January 2021. [11] Therefore, it is argued that the initial ground upon which the Plaintiff relied on to institute his Originating Summons which is that the YDPA refused to follow the advice of the Prime Minister, was no longer in existence; and the state of Emergency that was declared by the YDPA had already ended on the 1st of August 2021. [12] In fact, the contention of learned counsel for the $ 2^{\mathrm{nd}} $ Respondent is that flowing from the above course of events, this appeal is now rendered doubly academic. [13] The learned SFC for the $ 1^{\mathrm{st}} $ Respondent also takes the position that the courts do not "act in vacuo or in vain" and further contended that the prevailing test is whether or not there is still a real and actual controversy between the parties which will affect their rights and interests. The learned SFC urged this court to decline to answer Question (2) as the factual substratum is no longer in existence. [14] As compelling as these arguments are, there appears to exist an exception as was expressed in the case of Bar Council Malaysia v Tun Dato' Seri Arifin Bin Zakaria & Ors (Persatuan Peguam-Peguam Muslim Malaysia, Intervener) and another appeal [2020] 4 MLJ 773. [15] This is known as the "Salem Exception" and the Federal Court in the above case expressed it as follows: "[59] One limited exception to the general rule is in relation to questions of public law. In R v Secretary of State for the Home Department, ex p Salem [1999] AC 450 at p 456, Lord Slynn of Hadley held: ... in a cause where there is an issue involving a public authority as to a question of public law, their Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which directly affect the rights and obligations of the parties inter se. However, the discretion to hear disputes must be exercised with caution, and academic appeals should not be heard 'in the public interest for doing so. [60] By way of example, features of academic cases suitable for determination include: (a) discrete point of statutory construction; (b) a situation where it does not involve detailed considerations of fact; and (c) a situation where there is a large number of similar cases which need to be resolved." (emphasis added) [16] We think that as this is a matter involving the public interest, this is an appropriate case to exercise our discretion to nonetheless determine Question No.2. Presumption of Constitutionality [17] Before embarking on an analysis of the subject matter at hand, it is apposite to hearken to first principles which is that there is a strong presumption of constitutionality. In Mandong Transport & Trading Sdn Bhd v Pertubuhan Keselamatan Sosial (Perkeso) [2020] MLRHU 375, it was held as follows: "（93] Learned Counsel for the Applicant argued that since 84(4) of the Employees Social Security Act 1969 has ousted the judicial power of the Court as stated in art 121(1) Federal Constitution, it is null and void because of such inconsistency pursuant to the operation of art 4(1). [94] Before we answer that question, there are a few things that requires mentioning. i. It is established law that the proper approach to interpreting the Constitution is that there is always a presumption in favour of constitutionality of an enactment and the burden is on him who attacks the enactment to show that there has been a clear transgression of the constitutional principles: (see Public Prosecutor v. Su Liang Yu [1976] 1 MLRH 63; [1976] 2 MLJ 128; Ooi Kean Thong & Anor v. PP [2006] 1 MLRA 565; [2006] 3 MLJ 389; [2006] 2 CLJ 701; [2006] 3 AMR 654; Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan [2002] 1 MLRA 511; [2002] 3 MLJ 72; [2002] 4 CLJ 105; [2002] 3 AMR 2817). In constitutional law, the presumption of constitutionality is the legal principle that the judiciary should presume statutes enacted by the legislature to be constitutional, unless the law is clearly unconstitutional or a fundamental right is implicated. (Gillian E Metzger & Trevor W Morrison, "The Presumption of Constitutionality and the Individual Mandate" in The Health Care Case: The Supreme Court's Decision and Its Implications (eds Nathaniel Persily, Gillian E Metzger & Trevor W Morrison: Oxford University Press, 2013), p 136.) ii. In the case of Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan (supra), the Federal Court pointed out the same principle at p 103 where the Court quoted the case of Public Prosecutor v. Datuk Harun Haji Idris & Ors [1976] 1 MLRH 611; [1976] 2 MLJ 116 [TAB 7], his Lordship Federal Court Justice Mohammad Dzaiddin said as follows: "It should be borne in mind that there is a strong presumption of the constitutional validity of an enactment or the impugned section with the burden of proof on whoever alleges otherwise". (emphasis added) The Basic Structure Doctrine [18] Given that Question No.2 asserts a violation of the basic structure of the FC, it is apt that the nature of the doctrine is examined first. [19] The concept, which has come to the fore in recent times, primarily through case law in this country, is commonly believed to have been based upon the jurisprudence of such a concept as developed in India. [20] The two main cases from that sub-continent are Shankari Prasad v Union of India (1951) AIR SC 458 and the more prominent case of Kesavananda Bharati v The State of Kerala (1973) AIR SC 1461. [21] In the latter case, the doctrine can be viewed in summary by what Sikri C.J. said as follows:

"Every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same.

(ii) The basic structure may be said to consist of the following features: -

Supremacy of the Constitution;

Republican and Democratic forms of Government;

Secular character of the Constitution;

Separation of powers between the legislative, the executive and the judiciary; and

Federal character of the Constitution; although this is not an exhaustive list." [22] Notwithstanding the commonly held belief that the doctrine of basic structure originated from India, we in fact find ourselves in agreement in this respect with the submission put forth by learned counsel for the Malaysian Bar as amicus curiae, that the concept owes its origins to the Grundnorm theory postulated by the Austrian jurist Hans Kelsen in his "Pure Theory of Law". [23] In this regard we adopt the same reliance as that placed by learned counsel for the Malaysian Bar upon the dissenting judgement of the then Chief Justice Tengku Maimun Tuan Mat in the case of Zaidi Kanapiah v ASP Khairul Fairoz Rodzuan & Ors and Other Appeals [2021] 5 CLJ 581 as follows: "[243] Now, on to the BSD which is often attributed to the Supreme Court of India. The concept of the doctrine itself however is not solely the creation of the Indian courts but perhaps more attributable in principle to the Grundnorm theory developed by an Austrian jurist, Hans Kelsen in his "Pure Theory of Law". [244] Kelsen lived at a time when the many States in Europe gained independence and started drafting their own written constitutions. He himself was responsible for the drafting of the Austrian Constitution, and in recognition of his work, was appointed to Austria's constitutional court in the later part of his life. Although it is unclear to what extent Kelsen had a hand in drafting the Constitution of Germany, art. 79 of it, which caters for the amending procedure, provides as follows:

This Basic Law may be amended only by a law expressly amending or supplementing its text. In the case of an international treaty regarding a peace settlement, the preparation of a peace settlement, or the phasing out of an occupation regime, or designed to promote the defence of the Federal Republic, it shall be sufficient, for the purpose of making clear that the provisions of this Basic Law do not preclude the conclusion and entry into force of the treaty, to add language to the Basic Law that merely makes this clarification.

Any such law shall be carried by two thirds of the Members of the Bundestag and two thirds of the votes of the Bundesrat.

Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in arts. 1 and 20 shall be inadmissible. (emphasis added) [245] Articles 1 to 19 of the German Constitution refer to Basic Rights (akin to Part II of our FC) and art. 79(3) quite clearly stipulates that no amendments by virtue of the legislative process are admissible in respect of those provisions. [246] Reverting to Kelsen's theory, it postulates that the Grundnorm is the "First Constitution" and is presupposed to be binding as the basis for validating all law. The Grundnorm may be perceived as the "higher order" which validates even the Constitution. See: Julius Cohen, The Political Element in Legal Theory: A Look at Kelsen's Pure Theory [1978] 88(1) Yale LJ 1, at p. 12." (emphasis added) [24] Neither time nor space affords us the luxury of embarking upon a minute or a microscopic analysis of what the Grundnorm entails, suffice to state that Kelsen appears to postulate that all laws emanate from a higher law or a First Constitution and from which all other laws acquire their validity. [25] It also appears to indicate that within the framework of the constitution lies certain basic rights which do not admit of or are not amenable to amendment. [26] It is perhaps timely at this juncture to examine briefly the attitude of our courts with regard to the Basic Structure Doctrine ("BSD") and their treatment of it. [27] What is clear is that the trend of judicial authority up until the advent of Semenylh Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 was not in favour of adopting the BSD as part of our jurisprudence. [28] This is evident from a long line of cases including Loh Kooi Choon v Government of Malaysia [1975] 2 MLJ 187, Phang Chin Hock v Public Prosecutor [1980] 1 MLJ 70, Teo Soh Lung v The Minister for Home Affairs [1989] 2 MLJ 449 and PP v Kok Wah Kuan [2007] 6 CLJ 341. [29] The faint flicker of hope in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333, did nothing to advance the cause of the BSD in a prominent manner. [30] That was until Semenyih Jaya (supra), which marked a watershed moment for the BSD, where the defining features of the BSD were expressed in the following terms: "[74] Thus it is clear to us that the 1988 Amendment had the effect of undermining the judicial power of the Judiciary and impinges on the following features of the Federal Constitution:

the doctrine of separation of powers; and

(ii) the independence of the Judiciary. [...] [87] [...] The Supreme Court [of India in Kesavananda Bharati v State of Kerala AIR 1973 SC 146] emphasised the sanctity of the doctrine of separation of powers and the exclusivity of judicial power. Khanne J, in concurring with the majority, inter alia, held at pp 2340-2347 that: [...] Although there is in the Constitution of India no rigid separation of powers, by and large the spheres of judicial function and legislation function have been demarcated and it is not permissible for the legislature to encroach upon the judicial sphere [emphasis in original]. [...] [88] The Judiciary is thus entrusted with keeping every organ and institution of the state within its legal boundary. Concomitantly the concept of the independence of the Judiciary is the foundation of the principles of the separation of powers." (emphasis added) [31] It will be noted that the emphasis was in respect of the separation of powers and the independence of the judiciary which was made in the context of the 1988 amendments which had emasculated judicial power and reduced it into nothing more than what federal law determines is within its remit. [32] In the case of Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545, the emphasis was very much the same, the Federal Court expounding as follows: "[32] Another principle which underlies constitutions based on the Westminster model, is the separation of powers between the branches of government. [...] In the Singapore High Court case of Mohammad Faizal bin Sabtu v Public Prosecutor [2012] SGHC 163, Chan Sek Keong CJ said: ... Likewise under the Singapore Constitution, the sovereign power of Singapore is shared among the trinity of constitutional organs, viz, the Legislature [...] the Executive [...] and the Judiciary [...] The principle of separation of powers, whether conceived as a sharing or a division of sovereign power between three organs of state, is therefore part of the basic structure of the Singapore Constitution. [...] [33] Inherent in these foundational principles is the role of the Judiciary as the ultimate arbiter of the lawfulness of state action. [...] [58] It would be instructive to now distill the principles as have been illustrated above:

under art 121(1) of the Federal Constitution, judicial power is vested exclusively in the civil High Courts. The jurisdiction and powers of the courts cannot be confined to federal law. [...]

judicial power in particular the power of judicial review, is an essential feature of the basic structure of the Constitution;

features in the basic structure of the Constitution cannot be abrogated by Parliament by way of constitutional amendment;

judicial power may not be removed from the High Courts; and

judicial power may not be conferred upon bodies other than the High Courts, unless such bodies comply with the safeguards provided in Part IX of the Constitution to ensure their independence." (emphasis added) [33] Similarly, in Alma Nudo Atenza v PP & Anor Appeal [2019] 4 MLJ 1, the Federal Court had this to say: [67] It should also be duly considered that constitutions based on the Westminster model are founded on the underlying principle of separation of powers with which the drafters are undoubtedly familiar. Thus, even on an independent reading of the FC, unaided by any such knowledge, the provisions therein cannot but suggest the intention to confine the exercise of legislative, executive and judicial power with the respective branches of government [...] [68] Hence, while the FC does not expressly delineate the separation of powers, the principle is taken for granted as a constitutional fundamental. [...] [69] The separation of powers between the Legislature, the Executive, and the Judiciary is a hallmark of a modern democratic State. [...] [72] This court has, on several occasions, recognised that the principle of separation of powers, and the power of the ordinary courts to review the legality of State action, are sacrosanct and form part of the basic structure of the FC [...] (emphasis added) [34] It is clear from these authorities that the principle of separation of powers which necessarily includes the power of judicial review, is an important component of the BSD. [35] These cases firmly established that the separation of powers is very much an inherent feature of our constitution and has been accepted as an integral constituent of our constitutional design. [36] The propagation of the doctrine however suffered a setback when in Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 3 MLRA 1, the majority was of the view that Loh Kooi Choon was correctly decided and no error was committed when the basic structure doctrine was rejected and was also correct in deciding that Parliament has power to amend any provision of the Federal Constitution, so long as the process of constitutional amendment as laid down in Article 159(3) is followed. [37] This trend continued in Rovin Jothy Kalleswaran v Lembaga Pencegahan Jenayah & Ors & Other Appeals [2021] 3 MLRA 260, where the majority rejected the basic structure doctrine and adopted the narrower approach that determination of the constitutionality of the impugned provision has to be based on what is provided in the Federal Constitution ("FC") and not premised on some foreign basic structure concept. [38] All that is required, opined the majority, is that Parliament follows the procedure in amending laws as stated in Article 159 FC, and any test of constitutionality is to be measured against the provisions of the FC, not against the concept of basic structure. [39] The minority however, took the position that Article 4(1) which stipulated the FC as being the supreme law of the land, as providing the judiciary with the basis to strike down law which is inconsistent with the FC. [40] In Zaidi Kanapiah v ASP Khairul (supra), the majority opined that the basic structure doctrine (BSD) had no place in Malaysia while the minority was of the view that the basic structure was to be found in Article 4 itself. [41] The minority also was of the view that the employment of the method of reading down of the 1988 amendment to Article 121(1) FC can be used to harmonise, when read with the word "any law passed" as to include only constitutionally valid "federal law". [42] In Goh Leong Yong v ASP Khairul Fairoz Rodzuan & Ors [2021] 5 MLRA 554, the Federal Court in a majority decision rejected the applicability of the basic features doctrine and upheld their decisions in Maria Chin and Rovin Joty as correct. [43] In Nivesh Nair a/l Mohan v Dato' Abdul Razak bin Musa, Pengerusi Lembaga Pencegahan Jenayah & Ors [2021] 5 MLJ 320, which was a review application, the court was of the view that there was no real challenge by the Federal Court with regard to the existence of the BSD except that the width and scope of its application was in question. [44] Finally, in Dhinesh a/l Tanaphil v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356, the Federal Court held that the courts were constitutionally empowered under art 4(1) to exercise their review function to determine whether or not a statutory provision or a statute itself was consistent with the FC. As the ouster clause directly contradicted art 4(1) by preventing judicial review, it followed that it was inconsistent with that article and no other. [45] All through this love hate relationship which the courts have had with the BSD, it is nonetheless clear that the doctrine does exist as gathered from the jurisprudence distilled from the preponderance of the authorities, and is embedded in our constitution. [46] To pretend that the BSD does not exist, is, to use a term familiar in drug trafficking cases, is to be guilty of the Nelsonian concept of being wilfully blind. [47] However, we would venture to suggest that locally, the concept lies at the very foundation of Article 4(1) which in no uncertain terms stipulate that the constitution is the supreme law of the Federation and that any law passed which is inconsistent, is void. [48] With regard to the sanctity of Judicial powers, this is embedded in Article 121 of the FC except that what Richard Malanjum CJ (Sabah and Sarawak) (as the CJ was then known) in the minority said in Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1 must be paid heed to, that the effect that the amendment to art 121(1) should by no means be read to mean that the doctrine of separation of powers and independence of the Judiciary are now no more the basic features of the Federal Constitution and that the amendment did not cause the courts to become servile agents of a Federal Act of Parliament and to only perform mechanically any command or bidding of a federal law. [49] If there was any doubt as to the correctness of that proposition, it was roundly affirmed in the Semenyih Jaya case. [50] So, whether one was to adopt the Indian position or the Kelsenian approach, there exists in our own constitution certain features which closely resemble the jurisprudence that underpins both approaches. [51] We therefore hold that the BSD is an intrinsic part of the FC. [52] At the very heart of the BSD, if not its very core itself, is the concept of separation of powers. It is to this very topic that we now turn our attention to in the endeavour to answer the question posed. Separation of powers [53] To the legal mind it seems almost too elementary to even consider what this concept means. The subject is encountered by every law student in the common law world in the study of constitutional law. [54] The concept is believed to have originated by the French philosopher Montesquieu where in his 1748 work, The Spirit of the Laws, he codified the concept of dividing government into three distinct branches: legislative, executive, and judicial to prevent abuse of power. [55] While there may be many and varied versions of the concept embedded in constitutions of countries around the world, in Malaysia, we who have adopted the Westminster model, certainly have embraced the concept. [56] In light of the elementary nature of the concept, no further elucidation on its features is necessary. [57] What however, needs to be examined is how this concept, which is part of the BSD in this country, sits with ouster clauses. Legislative drafting history of Article 9(2) and 10(2) of the FC [58] Learned Senior Federal Counsel (SFC) submitting for the First Respondent allude to the drafting history of the two above articles in asserting that the contention by the Appellant that the ouster clause violates the doctrine of separation of powers is based upon a false premise. [59] This is because Article 9(2) which provides for the freedom of movement, makes that right subject to Clause (3) and to any law relating to the security of the Federation or any part thereof, public order, public health, or the punishment of offenders, every citizen has the right to move freely throughout the Federation and to reside in any part thereof. [60] In Article 10, there is a right to freedom of speech, assembly and association but this is circumscribed by restrictions imposed by Parliament in Article 10(2). [61] The Learned SFC further points to Article 4(2) which reads as follows as being essentially an ouster clause; "（2）The validity of any law shall not be questioned on the ground that-

it imposes restrictions on the right mentioned in Article 9(2) but does not relate to the matters mentioned therein: or

it imposes such restrictions as are mentioned in Article 10(2) but those restrictions were not deemed necessary or expedient by Parliament for the purposes mentioned in that Article." [62] The point made by the SFC is that there already exists in the FC clauses that are indicative of or have the effect of ousting the jurisdiction of the courts and noting that there was no suggestion that these clauses are violative of the separation of powers. [63] They go further and trace the dissent of Mr. Justice Abdul Hamid from Pakistan, who was a member of the Reid Commission, at the time when our FC was being shaped and drafted along with the observations of the Reid Commission. [64] They point in particular to Draft Article 10 as originally proposed by the Reid Commission in the Draft Constitution of the Federation of Malaya which read as follows: "10. (1) Every citizen shall have the right to freedom of speech and expression, subject to any reasonable restriction imposed by federal law in the interest of the security of the Federation, friendly relations with other countries, public order, or morality, or in relation to contempt of court, defamation, or incitement to any offence.

Every citizen shall have the right to assemble peaceably and without arms, subject to any reasonable restriction imposed by federal law in the interest of the security of the Federation or public order.

Every citizen shall have the right to form associations, subject to any reasonable restrictions imposed by federal law in the interest of the security of the Federation, public order or morality." (emphasis added) [65] The dissent of Justice Abdul Hamid is then recorded in his Note of Dissent as follows: "(iii) Article 10. The word "reasonable" wherever it occurs before the word "restrictions" in the three sub clauses of this article should be omitted. Right to freedom of speech, assembly and association has been guaranteed subject to restrictions which may be imposed in the interest of security of the country, public order and morality. If the Legislature imposes any restrictions in the interests of the aforesaid matters, considering those restrictions to be reasonable. that legislation should not be challengeable in a court of law on the ground that the restrictions are not reasonable. The Legislature alone should be the judge of what is reasonable under the circumstances. If the word "reasonable" is allowed to stand every legislation on this subject will be challengeable in court on the ground that the restrictions imposed by the Legislature are not reasonable. This will in many cases give rise to conflict between the views of the Legislature and the views of the court on the reasonableness of the restrictions. To avoid a situation like this it is better to make the Legislature the judge of the reasonableness of the restrictions. If this is not done the Legislature of the country will not be sure of the fate of the law which they will enact. There will always be a fear that the court may hold the restrictions imposed by it to be unreasonable. The law would be lacking in certainty." (emphasis added) [66] This dissent was shared by the Malay Rulers. This was reflected in the Minutes of the Working Party, 1st Meeting, 22.02.1957. [67] Justice Abdul Hamid's dissent was the subject of discussion by the Working Party during the 8th Meeting held on 08.03.1957 as reflected as follows; "Article 10 The Working Party discussed the proposal of Mr. Justice Abdul Hamid that the word "reasonable" wherever it appeared before the word "restriction" should be deleted. If, however, this word were to be omitted there would be no limit on the power of the Federation Government to impose restrictions limiting the right of citizens to freedom of speech and expression, freedom to assemble peaceably and without arms and freedom to form associations. On the other hand, if the word were retained it would be left to the Courts to decide what was a reasonable restriction in the interests of the security of the Federation, friendly relations with other countries, etc. After some discussion it was thought that it would be best to recommend:

the insertion of the words "in the opinion of Parliament" in all of the three Clauses after the words "federal law";

(ii) the deletion of the word "reasonable" wherever it appeared before the word "restriction"; and

(iii) that the views of constitutional experts in the United Kingdom be obtained on these proposals." [68] The above discussion was contained in the Minutes of the Working Party, 8th Meeting, 08.03.1957, Report of the Constitutional Commission (List of Unresolved Points). [69] The reason behind the proposed insertion of the words "in the opinion of Parliament" in Article 10 was explained as reflected in the Report of the Constitutional Commission Working Party (Part III, Articles and Sections Outstanding) paragraph 6 as follows; "Article 10 (Freedom of speech, assembly and association) It has been agreed in the Working Party that the word "reasonable" should be omitted throughout this Article. On the other hand, if this were done, it would still be open for a law to be challenged on the ground that it was not in "the interests of the security of the Federation. etc." To meet this point, it has been suggested that the words "in the opinion of Parliament" should be inserted in all three Clauses after the words "federal law"; but the wording of this Article has also been referred to constitutional experts in the United Kingdom for advice. It has in any case, been agreed that Clause (1) of the Article should be qualified by including a reference to Parliamentary privileges." [70] In order to make manifest that intention, draft Article 3, as it was originally proposed (which is the precursor of what is now Article 4), was redrafted in the following terms: "Article 3 Clause (1) This Constitution shall be the supreme law of the Federation and any provision of the Constitution of any State or of any law which is repugnant to any provisions of this Constitution shall to the extent of the repugnancy and subject to the provisions of this Constitution be void: Provided that it shall not be competent for any Court to question or to entertain proceedings which question, on the grounds that it is contrary to the provisions of Article 9(2) or Article 10 or 11. any Federal law nor shall any Court question or entertain proceedings which question the validity of any Federal law or State law on the ground that Parliament or the Legislature of the State respectively had no power to make such a law, except in the course of proceedings in which the Federation is on one side and two or more States (including in the case of a State law the State concerned) on the other." [71] The above was contained in the (Report of the Constitutional Commission Working Party, Draft Constitution of the Federation of Malaya). [72] The newly minted draft Article 3(1) and draft Article 10(1) were discussed and finalized in London with the involvement of the Federation of Malaya delegation, the High Commissioner and the UK government represented by the Colonial Office, the Commonwealth Relations Office, and assisted by the UK Parliamentary Counsel. The Minutes of the Working Party 1st Plenary Meeting, on 14.05.1957 shows as follows: "Article 3 ... The proviso to Clause 1 was discussed and it was agreed to keep as closely as possible to its sense. Article 10 This was agreed, and it was noted that an addition should be made to defend the rights of a Legislative Assembly." [73] The eventual result was the present Article 4 and Article 10 which appeared in the final Constitutional Proposals for the Federation of Malaya 1957, or the 'White Paper'. [74] The whole point of tracing the legislative history of these clauses, submitted learned SFC, was to show that;

there is a limit to judicial powers. The framers of the Constitution were acutely aware of the institutional competence of the respective branches of the government;

(ii) policy-centric matters such as consideration pertaining to security of the Federation, friendly relations with other countries, public order or morality are considered to be beyond the institutional competence of the judiciary;

(iii) the FC was drafted with the sober understanding that there are certain matters, either because of the sensitive nature or due to the constitutional or political importance, which are non-justiciable in a court of law. [75] The sum total to take away from this exercise is that the restriction or curtailing of judicial powers in the FC itself is nothing new or novel. With regard to these two clauses i.e. Article 9(2) and 10(2) of the FC at least, there was a recognition that uncertainty in the law in some areas will not augur well and especially so in as important and pivotal a document as the FC. [76] The legislative history also discloses that there are some sphere of areas that the courts are ill equipped to deal with, such judgements best left to the legislative or executive arm who will be possessed with the necessary information which the courts are not privy to. [77] To further reinforce the point made, the $ 1^{\mathrm{st}} $ Respondent made references to several other ouster or ouster like clauses found in the FC as was originally recommended by the framers through the White Paper, as follows:

Article 5(5) excludes the right of a detainee to be brought before a magistrate in the case of enemy alien;

(ii) Article 53 which states that the decision of the House of Parliament in respect of any question whether a member has become disqualified for membership 'shall be final';

(iii) Article 63 which mandates that the validity of any proceedings in either House of Parliament or any committee thereof 'shall not be questioned in any court';

(iv) Article 68(4) which states that a certificate issued by the Speaker of the House of Representative certifying that the procedures under Article 68 have been complied with' shall be conclusive for all purposes and shall not be questioned in any court';

Article 71 which laid down that any dispute as to the title to the succession as Ruler of any State 'shall be determined solely by such authorities and in such manner as may be provided by the Constitution of that State', which implies that 'such authorities' might not necessarily be the court;

(vi) Article 72(1) states that the validity of any proceedings in the Legislative Assembly of any State 'shall not be questioned in any court'. Article 72(2) and (3) further secure privileges of the Legislative Assembly in relation to anything said, published or any vote given by a person in the Legislative Assembly;

(vii) Article 87 regulates any disputes as to land value between the Federal Government and the State Government by the Lands Tribunal, instead of court, and thereafter a direct appeal from the Lands Tribunal to the Supreme Court on any question of law;

(viii) Article 125(8) which provides immunity to a judge insofar as the validity of anything done by a judge of the Supreme Court 'shall not be questioned on the ground that he had attained the age at which he was required to retire';

(ix) Article 150(6) which immunizes any law or ordinance made while a Proclamation of Emergency is in force on the need not to infringe fundamental liberties: no provision of any law or ordinance made or promulgated in pursuance of this Article 'shall be invalid on the ground of any inconsistency with the provisions of Part II';

Article 151(1)(b) read with Article 151(2) which provides that for the purpose of preventive detention for a period exceeding three months, the detainee had no access to the normal court. Instead, such detention is valid so long as an advisory board reported that 'there is in its opinion sufficient cause for the detention';

(xi) Article 156 states that disputes on contributions in aid of rates in respect of federal and State property shall be determined by a tribunal consisting of the chairman of the Lands Tribunal established under Article 87, and two other members;

(xii) Article 181(2) states that 'no proceedings whatsoever shall be brought in any court against the Ruler of a State in his personal capacity';

(xiii) Section 2 of the Second Schedule which provides that a decision of the Federal Government under Part Ill of the Constitution on citizenship 'shall not be subject to appeal or review in any court';

(xiv) Section 5 of the Second Schedule which provides a partial ouster of the court's jurisdiction and limits it to point of law in respect of a decision of a registration authority on matter of citizenship;

(xv) Section 5 of the Seventh Schedule states that 'if any question arises whether a member of the Senate had been duly elected in accordance with the provisions of this Schedule, the decision of the Senate shall be taken and shall be final';

(xvi) Section 8 of the Eighth Schedule provides that the decision of the Legislative Assembly on the disqualification of a member 'shall be final'; [78] In the final analysis, the point that the SFC is making is that ouster clauses cannot be said to be in violation of the BSD or the separation of powers doctrine given that it was never the intention in the first place to empower judicial oversight without any limitations whatsoever. We find that the contention by the 1st Respondent in this regard has the force of logic and is compelling. [79] The reasoning is also consonant with the method of the "original intent" approach of constitutional interpretation as reflected in case law of high authority. [80] The legislative drafting history also reveals the pragmatic realities of overlapping responsibilities of the different branches of government over certain subject matters. [81] As contended by the learned SFC, which we are in agreement with, since the framers of the Constitution had come to accept that the legislature should be the sole judge in the case of Article 9 and 10 on reasonable restriction imposed on the freedom of movement, of speech, assembly and association 'in the interest of the security of the Federation, friendly relations with other countries, public order or morality etc.', there is no reason sounding in principle why Article 150(8) FC which preclude the questioning in court of the satisfaction by the YDPA that 'the security, or the economic life, or public order in the Federation is threatened', is any more objectionable since both ouster clauses dealt with the same subject matter i.e. consideration of the security of the Federation and public order. [82] The inevitable conclusion therefore is that the sweeping generalisation, without more, that any form of ouster clause in the FC has the automatic effect of rendering it void as being violative of the separation of powers and thus, the BSD of the FC, is unmeritorious. Can the BSD and the separation of powers concept exist harmoniously with ouster clauses in the FC? [83] In a series of cases and other authorities cited by the learned SFC, it was sought to present a method of interpretation that distinguished a basic feature from a facet of a basic feature with the result that while a basic feature is unamendable, a facet of a basic feature may be qualified, suspended or even abrogated to cater for justified or proportionate reasons. [84] Various other nomenclatures were employed in the course of pursuing this argument including the '2-steps stratification test' and identifying a 'proper abstraction level'. The authorities relied upon were articles from Singapore and India. [85] It was contended that a semblance of those methods can also be found in our case law. The Federal Court case of Ketheeswaran a/l Kanagaratnam & Anor v PP [2024] 1 MLJ 851 was referred to where the then CJ remarked at [15] that 'judicial review ... is a powerful component of judicial power, separation of powers and check and balance'. [86] It was thus asserted that the reference to the phrase 'component' implies a distinction between a subset and a superset which necessarily implies different possible abstraction levels for consideration between an element of the subset from the superset. [87] The case of Mohd Najib bin Hj Abd Razak & Anor v Government of Malaysia and another appeal [2023] 6 MLJ 483, was also referred to and in particular, the judgement of Justice Nallini as follows: "The test, in gist, is that 'the substance and effect of the impugned legislation is to be benchmarked against the breadth and scope of the constitutional provision it allegedly impinges upon ... the meaning of a statutory provision and the intention of the Legislature in enacting the same can only be properly construed by considering the whole of the statute and every part of it". [88] In her analysis, Justice Nallini also held: 'several facets to judicial power' (at [38]) and at [40], [45] that 'the facet of judicial power being referred ... is the power of the judiciary to hear and determine the subject matter of actual controversies between parties to a suit'. [89] It was submitted that Justice Nallini came to the conclusion that judicial power was not abrogated or suspended by reason of s 106(3) of the Income Tax Act 1967, even though 'the power of the courts to hear and determine defences available to a taxpayer when the IRB exercises its power of recovery of collection are curtailed in several respects'. [90] Next, the SFC cited the case of Haris Fathillah bin Mohamed Ibrahim & Ors v Tan Sri Dato' Sri Hj Azam bin Baki & Ors [2023] 2 MLJ 296 where the then CJ employed a 'constitutional contextual construction' approach, and explained that in a situation where the basic feature 'is not expressly ordained by the FC in art 125', 'it is here that one can appreciate why context is important because the very concept of judicial power, judicial independence and even the mechanism of constitutional judicial review exist by implication.' [91] The whole point of the SFC's submission here is to contend that while a basic feature such as separation of powers or check and balance is unamendable, a facet of a basic feature (for example 'the power of the judiciary to hear and determine the subject matter of actual controversies between parties to a suit' as in the case of Mohd Najib) is treated with more flexibility to accommodate other justified local contingencies or practical considerations. [92] Whatever term or nomenclature utilised, we can agree to one thing, and that any feature or clause of the FC is to be appreciated contextually and not in isolation. [93] This is in accord with the general maxim of how the FC is to be interpreted which is prismatically and harmoniously See Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301. [94] Therefore, in adopting this approach, no violence is occasioned to the sanctity of the BSD and the separation of powers doctrine if one were to apply the BSD versus a facet of the BSD method in coming to the conclusion that because of the peculiar nature of Emergency powers, a facet of the BSD may be curtailed by for example, the employment of an ouster clause with a specific purpose and yet preserve the separation of powers between the three organs of government. There is thus no contradiction between upholding the BSD as part of our constitutional construct and the existence of ouster clauses within that construct. [95] If one were to apply the analogy of the construct of a building, the BSD is the foundation, the pillars, and the beams while a facet of the BSD may be likened to the windows or doors. While the latter may be tinkered with and re-designed, the former may not be subject to alteration as otherwise the whole edifice will collapse. [96] An extension of this logic can best be appreciated by considering the peculiar nature of Emergency powers and exactly why it was made the subject of non-justiciability. Emergency powers rendered Non-Justiciable [97] Learned SFC referred to a piece of legal literature on the nature of Emergency powers citing D Bonner, Emergency Powers in Peacetime (1985) London: Sweet & Maxwell, p 7 which stated the following; "The powers applicable on an everyday basis represent the context in which the special powers (the emergency powers) operate. It is often the inadequacy of those ordinary powers to deal with the threat that provides a justification for resort to special powers". [98] The same learned author also opined that generally, emergency powers have certain principal characteristics as follows:

Extraordinary nature - "those who operate the constitution conceive of them as extraordinary in scope, as powers which would not be available to government but for the emergency";

(ii) Wide discretion - "they tend to confer wide discretionary authority and enhanced powers on government, untrammelled by the normal constitutional fetters";

(iii) Limited purpose - "they are envisaged as being temporary in that the power only arises at the time of crisis". [99] Here again, the legislative history behind the enactment of Emergency powers, provide a valuable and useful guide to understanding the need for Article 150. [100] The report of the Reid Commission on Articles 149, 150 and 151 emphasised that: "Neither the existence of fundamental rights nor the division of powers between the Federation and the States ought to be permitted to imperil the safety of the State or the preservation of a democratic way of life. The Federation must have adequate power in the last resort to protect these essential national interests." See: Report of the Federation of Malaya Constitutional Commission 1957 ("Reid Commission Report") at [172]. [101] The Reid Commission expressed the need for wider powers to deal with the emergency, and the undesirability of setting any general limits to such a power: "Emergencies, such as war, or internal disturbance, which constitute an immediate threat to the security or economic life of the country or any part of it, may have to be dealt with more promptly. In such cases we recommend that there should be a Proclamation of Emergency, and that the Federal Government should then have power to give directions to any State Government or State officer or authority. In such an emergency we recommend that Parliament should have power to enact any provision notwithstanding that it infringes fundamental rights or State rights. We do not think that it is possible or desirable to set general limits to this power ... " (See: Reid Commission Report at [175]) [102] The intentions of the framers with regard to Emergency powers are not hard to discern when viewed against the backdrop of what our new nation of Malaya at the time was faced with. [103] Firstly, the then Malaya was as it is today, very much a plural and multi-ethnic society. The challenge was to navigate the tensions between the various races and to avoid a breakout of potential race riots. [104] Secondly, there was an ongoing Malayan Emergency (1948-1960). After independence was achieved, a guerrilla war fought by the Malayan National Liberation Army (MNLA), the armed wing of the Malayan Communist Party (MCP), was still ongoing. [105] The newly formed government had to deal with internal security threats and the need to relocate hundreds of thousands of people into "new villages" to cut off communist support. [106] Thirdly, there were also threats from neighbouring nations that threatened to derail the new country's sovereignty, for e.g. the Confrontation with Indonesia. [107] The Reid Commission had also to deal with negotiating the status of the Rulers, Islamic law, and citizenship rights within the framework of the Constitution. [108] Having trodden the murky quagmire that surrounds the BSD and the principle of separation of powers, it is timely to remind ourselves lest we be distracted, of the sole issue in this case which is: "Whether Act A514 which amended Article 150 by adding Clause (8) and (9) is violative of the basic structure of the Federal Constitution having regard to Article 4 (1) thereof". [109] It is therefore to Act A514 to which we now turn our attention to. Clauses (8) and (9) were added to Article 150 of the Federal Constitution via Act A514 in April 1981. It is the amendment to Article 150 that lies at the heart of this appeal. [110] On 19.4.1981, the then Deputy Prime Minister in moving the Dewan Rakyat for an amendment to Article 150 of the Federal Constitution stated the following: "Tuan Yang di-Pertua, cadangan pindaan Perkara 150 melibatkan beberapa fasal. Tujuan yang pertama ialah bagi membolehkan Yang di-Pertuan Agong membuat perisytiharan darurat sebelum berlakunya peristiwa sebenar yang mengancam keselamatan dan ekonomi negara. Yang keduaialah bagi membolehkan Yang di-Pertuan Agong mengeluarkan perisytiharan-perisytiharan yang berbeza dan selagi perisytiharan tersebut masih berkuatkuasa Yang di-Pertuan Agong boleh membuat Ordinan-ordinan semasa kedua-dua Dewan tidak bersidang dan ordinan-ordinan ini berkuatkuasa sama seperti yang diluluskan oleh Parlimen. Di samping itu cadangan pindaan ini adalah bagi menentukan bahawa sebab-sebab Yang di-Pertuan Agong mengisytiharkan darurat, Perisytiharan Darurat dan kuatkuasanya serta Ordinan-ordinan dan kuatkuasa Ordinan--ordinan tersebut tidak boleh dicabar di mana-mana Mahkamah. Takrif 'sitting' juga dimasukkan di mana takrif 'sitting" bagi Perkara ini ialah semasa Dewan menjalankan urusannya. Cadangan pindaan kepada Perkara 150 ini adalah bagi memperkemaskan Perisytiharan Darurat dan Ordinan-ordinan yang dibuat di bawah kuasa ini. Oleh itu walaupun pada dasarnya pindaan-pindaan melibatkan banyak fasal-fasal tetapi dari segi maksudnya adalah tidak banyak berbeza dengan peruntukan yang ada mengenai Perkara ini, iaitu bagi mengadakan satu peruntukan Darurat di dalam Perlembagaan, yang mana ini sangat penting bagi keselamatan dan ketenteraman negara. Kelemahan yang ada pada Perkara 150 adalah berpandukan kepada pendapat Privy Council semasa memutuskan kes Teh Cheng Poh. Sebagaimana Ahli-ahli Yang Berhormat sedia maklum, Teh Cheng Poh adalah seorang banduan yang dikenakan hukuman mati di bawah Akta Keselamatan Dalam Negeri yang merayu ke Privy Council. Privy Council berpendapat bahawa apabila sahaja Parlimen dipanggil bersidang (sitting) ianya dianggap masih bersidang sehingga masa Parlimen diberhenti (prorogued) atau dibubarkan (dissolved). Oleh itu Yang di-Pertuan Agong tidak mempunyai kuasa membuat Ordinan Darurat sehingga Parlimen diberhentikan atau dibubarkan. Keadaan sedemikian akan menimbulkan kesulitan pada masa Kerajaan perlu mengambil tindakan serta-merta demi keselamatan negara. Adalah menjadi tugas utama bagi Kerajaan menjamin dan mengekalkan keselamatan dan ketenteraman negara setiap masa. Oleh itu sangatlah perlu bagi Kerajaan diberi kuasa yang luas bagi mengambil apa-apa tindakan yang difikirkan perlu bagi maksud untuk mengekalkan keselamatan dan ketenteraman negara. Perisytiharan darurat adalah satu-satunya tindakan yang perlu diambil jika terdapat bukti-bukti yanq menunjukkan bahawa jika tindakan yang berkesan tidak diambil dengan secepat mungkin besar kemungkinan akan berlaku huru-hara di dalam negara yang akan melibatkan pengorbanan nyawa dan kehancuran harta benda orang-orang yang tidak berdosa. Maklumat-maklumat seperti itu tidaklah bijak dikemukakan di Mahkamah atas sebab-sebab keselamatan. Oleh itu sangatlah penting perisytiharan darurat tidak boleh dicabar di Mahkamah. Di samping itu adalah sangat penting dimasukkan peruntukan yang membolehkan perisytiharan darurat dibuat sebelum terjadinya peristiwa sebenar, kerana kita tidak mahu melihat terjadinya pertumpahan darah dan negara diancam oleh peristiwa-peristiwa sebenar yang tidak dapat di elakkan jika tindakan yang berkesan tidak diambil dengan secepat mungkin. Dengan pindaan Perkara 150 ini, walaupun Yang di Pertuan Agong mempunyai kuasa yang luas di dalam Perisytiharan Darurat tetapi saya penuh yakin yang Baginda dan Kerajaan akan menggunakan kuasa ini sebijak-bijaknya." (emphasis added) The above passage was contained in the Hansard dated 19.4.1981. [111] It can be discerned from this that the reasons for the inclusion of Clause (8) was that firstly, in an emergency that needs to be dealt with immediately by the Government, there is sensitive information that is only available to the Executive, and secondly, in the national security interest, it is not wise that such sensitive information be disclosed to the public at large and be subjected to judicial review. [112] Hence, the need for Clause (8) to be added to exclude the Court from reviewing the Proclamation of Emergency and any related Ordinance/s thereafter. [113] The rationale for the inclusion of Clause (9) was to overcome the Privy Council decision in Teh Cheng Poh which ruled that the Parliamentary sitting means the sitting of normal Parliament until it is prorogued or dissolved and hence the Yang Di-Pertuan Agong does not have the power to promulgate Emergency Ordinance/s until and unless the Parliament is prorogued or dissolved. [114] Without the insertion of a new Clause (9), it will be difficult for the Government to promulgate Emergency Ordinance/s. This can lead to disastrous consequences of loss of both life and limb when otherwise swift action by the Government would have averted the crisis. [115] The contention by the Appellant that the insertion of Article 150(8) fundamentally altered the balance of power between the branches of government is misconceived as it fails to take into account the fact that under Article 150 pre-amendment, the discretionary powers with regard to emergency powers had been vested in the Executive to begin with. [116] This vesting of the discretion in the hands of the Executive as originally intended by the framers clearly delineated and demarcated the respective spheres amongst the three organs of government which of itself was a display of the separation of powers principle. It cannot therefore be taken that the amendment was destructive of the BSD. [117] A court would not be equipped to decide on the legality of the YDPA's satisfaction of national threats as it would be impossible to adduce all available facts before the courts and as such it would be inappropriate for a court exercising powers of judicial review to make value judgments of a non-judicial nature. [118] The courts are simply ill equipped to deal with matters involving national security. By its very nature, sensitive information cannot be disclosed to the court. Matters relating to national security are best left to the agencies who are privy to sensitive information. The Executive is best placed to advise the Yang Di Pertuan Agung in such matters. [119] There is an obvious overlap here in the separation of powers. In such situations, the courts themselves must tread carefully lest they themselves fall foul of the rule against transgressing the separation of powers. [120] It is for the reasons stated above, that we hold that the emergency powers under Article 150 to be non-justiciable. Pre-amendment position [121] The pre-amendment position was that adopted by the Federal Court in Stephen Kalong Ningkan v Government of Malaysia [1968] 1 MLJ 119, where the then Lord President for the majority held that a Proclamation of Emergency cannot be the subject of inquiry by a court of law as follows: "In my view the question is whether a court of law could make it an issue for the purpose of a trial by calling in evidence to show whether or not His Majesty the Yang diPertuan Agong was acting in bad faith in having proclaimed the emergency. In an act of the nature of a Proclamation of Emergency, issued in accordance with the Constitution, in my opinion, it is incumbent on the court to assume that the Government is acting in the best interest of the State and to permit no evidence to be adduced otherwise. In short, the circumstances which bring about a Proclamation of Emergency are nonjusticiable." [122] The decision of the Federal Court was upheld on appeal to the Privy Council in Stephen Kalong Ningkan v Government of Malaysia [1970] AC 379 where the general question of whether any proclamation by the supreme head of state can be challenged before the courts on any grounds is "a constitutional question of farreaching importance" which the Privy Council declined to decide, on the basis that the question should only be "determined in proceedings which made that course necessary". "It is not for their Lordships to criticise or comment upon the wisdom or expediency of the steps taken by the Government of Malaysia in dealing with the constitutional situation which had occurred in Sarawak, or to inquire whether that situation could itself have been avoided by a different approach. These were essentially matters to be determined according to the judgment of the responsible Ministers in the light of their knowledge and experience." [124] It can thus be seen that even pre-amendment, the prevailing position was that matters relating to the Proclamation of Emergency are solely for the YDPA and the executive, and do not fall within the purview of the courts. [125] The "fraudem legis" exception alluded to by the minority judgement in the Federal Court case remains as what it is, and that is a minority view at best. In any event, we find no such evidence on the facts. The legality of the amendment as introduced by Act A514 [126] Finally, with regard to the legality of Article 150(8) FC as introduced by Act A514, it is apposite to refer to the case of Datuk Seri Anwar Ibrahim v Kerajaan Malaysia & Anor [2021] 6 MLJ 68 where the Federal Court held that 'law' in Article 4(1) refers to ordinary law passed by Parliament and not to Acts effecting changes to the Constitution. [127] The logic behind the reasoning is plain to see and the Federal Court opined that 'if it is correct that amendments made to the Constitution are valid only if consistent with its existing provisions, then clearly no change whatsoever may be made to the Constitution; in other words, art 159 is superfluous'. [128] We are of course bound by this decision and on this ground alone the challenge by the Appellant must fail. [129] We pause at this juncture to make one salient observation and that is that this case is quite different in one aspect compared to the list of cases earlier referred to, including Semenyih Jaya, Indira Ghandi, Alma Nudo Atenza, Zaidi Kanapiah, Nivesh Nair, Dinesh Tanaphil and Maria Chin in that none of these cases concerned the interpretation of an ouster clause in the FC itself. However, this does not affect the pronouncements in some of these cases in respect of the fact that the BSD is very much an intrinsic part of our constitution. Application of Miller's Case [130] The Appellant, supported by the Malaysian Bar, took the position that the Miller case in the United Kingdom is persuasive authority that the challenge to Act A514 is justiciable. [131] In R (on the application of Miller) v The Prime Minister & Ors [2019] UKSC 41, the United Kingdom Supreme Court (UKSC) was faced with a decision by the former UK Prime Minister Boris Johnson to prorogue Parliament (i.e., a form of suspension) for a total duration of five weeks in the lead-up to the UK's exit from the European Union (i.e., "Brexit"). [132] The UKSC held that the Prime Minister's prerogation advice was unlawful and said the following in rejecting the respondents' objections that the Prime Minister's prerogation advice was non-justiciable; "...every prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie". In so doing, the Courts are fulfilling their "responsibility of upholding the values and principles of our constitution and making them effective". [133] The contention by the Appellant and the Malaysian Bar fails to consider some very important considerations. [134] Firstly, the United Kingdom (UK), unlike us, does not have a written constitution but are based upon common law constitutional principles implemented incrementally by the courts. The UK model is also influenced very much by a series of unwritten conventions. [135] Malaysia, on the other hand, has a written constitution which is expressly stated to be the supreme law of the land. See Article 4. [136] Secondly, as the constitution here is the supreme law of the land, we do not, as is the case with the UK, subscribe to the notion of parliamentary sovereignty. [137] The sui generis nature of the UK constitutional order was indeed recognised by the UKSC in Miller II itself, as the following excerpt from the judgement indicates: [39] Although the United Kingdom does not have a single document entitled 'The Constitution', it nevertheless possess a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development. Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective." [138] By way of contrast, Malaysia's written constitutional order already provides by way of Article 4, for the scope of constitutional powers and explicitly states that the written constitution is supreme. [139] Applying this to the facts of this case, the scope of emergency powers is clearly expressed and specified in Article 150 of the Federal Constitution. [140] The role of the courts within the written framework of constitutional powers, is to interpret and uphold these powers. [141] Finally, Miller's case did not involve or concern the interpretation of an ouster clause. [142] By reason of the above analysis, we hold that Miller's case has no application in Malaysia. Decision [143] In light of the reasons articulated above, we unanimously answer Question 2 in the negative. The declaration sought for is denied. The Appellant has failed to displace the presumption of constitutionality. In the premises, this appeal is dismissed. The findings and decision of the High Court are affirmed. As this is a matter of public interest, we exercise our discretion not to impose costs. Judge Court of Appeal, Malaysia Counsel of the Appellant:

T. Gunaseelan

Uma Gunaseelan

Kengadharan A/L Ramasamy (Messrs R.Kengadharan & Co.) Counsel of the Respondents: Counsel of Respondent 1:

Liew Horng Bin

Fauziah Binti Daud (Jabatan Peguam Negara, Putrajaya, Jabatan Peguam Negara (AGC)) Counsel of Respondent 2: Aidil Bin Khalid (Messrs. Ahmad Fuad Abi & Aidil) Counsel of Respondents 3-5: Mohamad Nufail Bin Mohd Zaim Munik (Messrs. Raja Riza & Associates) Counsel of Respondent 6:

Raphael Kok Chi Ren

Khaizan Sharizad Binti Ab. Razak

Emily Ho Mei Li (Messrs. Seira & Sharizad) Counsel of Respondents 7-11:

Muhammad Rafique B Rashid

Nurmustanir Bin Md Nor (Messrs. Law Practice of Rafique)

Bastian Vendargon

Adrian Kumar Vendargon