Are ouster clauses in Article 150 consistent with the Constitution?

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Federal Court to Determine if Ouster Clauses in Article 150 Contradict the Constitution

Datuk Seri Anwar Ibrahim is seeking a Federal Court determination on whether the courts possess the authority to review the Prime Minister's advice to the Yang di-Pertuan Agong regarding the suspension of Parliament under emergency laws. His application posits four key legal questions, focusing on the applicability and constitutionality of specific provisions within Article 150 of the Federal Constitution, which contain ouster clauses that limit judicial review of emergency measures. The core of the challenge lies in whether these clauses, particularly Article 150(6) and Article 150(8), are themselves consistent with the foundational principles of the Federal Constitution.
Scope of Judicial Review for Executive Advice During Emergencies

Anwar's legal team has filed an application to refer four questions of law to the Federal Court. These questions aim to ascertain if the advice given by the Cabinet, led by the then Prime Minister Tan Sri Muhyiddin Yassin, to suspend Parliament under an Emergency law is subject to Article 150, which includes provisions that appear to prevent judicial review. The second question directly asks whether the Cabinet's advice to suspend Parliament is reviewable by the courts, probing the boundaries of judicial oversight over executive actions during a state of emergency.
Constitutionality of Specific Ouster Clauses and Enacting Provisions

The third question posed to the Federal Court concerns the consistency of several legislative provisions with fundamental articles of the Federal Constitution. Specifically, it questions whether Section 39(2) of the Malaysia Act 1963, Section 15(d) of the Constitutional (Amendment) Act 1981, and Articles 150(6) and 150(8) of the Federal Constitution contravene Articles 4, 5, 8, and 121(1). Article 150(6) states that no provision of an Emergency Ordinance shall be invalid even if inconsistent with the Federal Constitution, while Article 150(8) explicitly removes the courts' jurisdiction to determine the validity of Emergency proclamations or ordinances.
Challenge to Ouster Clauses Based on Advice, Not Ordinances

Anwar's argument hinges on the distinction between challenging the Emergency laws themselves and challenging the advice that led to their enactment and the subsequent suspension of Parliament. He contends that the ouster clauses in Article 150(6) and Article 150(8) may not extend to the specific advice given by the Cabinet, arguing that this nuanced point requires a definitive ruling from the Federal Court. He believes it is fitting for the Federal Court to address these questions due to their direct impact on his lawsuit and the broader implications for the rule of law, particularly as these provisions appear to conflict with the basic structure of the Federal Constitution.

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Are ouster clauses in Article 150 consistent with the Constitution?

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