Why did the lawyer challenge the 1981 constitutional amendment?

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Lawyer Challenged 1981 Constitutional Amendment on Grounds of Violating Basic Structure

A lawyer, Syed Iskandar Syed Jaafar Al Mahdzar, has sought leave to appeal to the Federal Court regarding his judicial review challenge against the former Yang di-Pertuan Agong's refusal to a request for a state of emergency five years ago. This challenge specifically targets the Constitution (Amendment) Act 1981, which introduced clauses to Article 150 of the Federal Constitution. Syed Iskandar contends that this 1981 amendment is unconstitutional, null, and void because it allegedly violates the basic structure of the Federal Constitution.
Legal Basis for the Challenge

The core of Syed Iskandar's legal argument rests on the assertion that the Constitution (Amendment) Act 1981, specifically its addition of Clauses 8 (a) and (b) to Article 150, contravenes the fundamental principles and unamendable essence of the Federal Constitution. He initiated this legal action via an originating summons in 2020, seeking a formal declaration from the courts to this effect. The Malaysian Government and ten other parties were named as defendants in this suit.
High Court and Court of Appeal Rulings

Both the High Court in Kuala Lumpur and, subsequently, the Court of Appeal, dismissed Syed Iskandar's originating summons and his appeal, respectively. The High Court ruled in February 2024 that Article 150(8) does not violate the basic structure of the Federal Constitution. Furthermore, the court held that this provision cannot be struck down under Article 40(1), which mandates the Yang di-Pertuan Agong to act on the advice of the Cabinet. The Court of Appeal, in its dismissal on May 4 this year, reinforced the view that matters pertaining to emergency powers under Article 150 are non-justiciable, meaning they are outside the purview of judicial review.
Rationale for Excluding Judicial Review of Emergency Powers

The courts' decisions highlighted the rationale behind the inclusion of Clause 8 in Article 150. It was explained that this clause serves to prevent judicial review of emergency proclamations and related ordinances. This exclusion is considered necessary because certain sensitive national security information is exclusively held by the Executive. Disclosing such information to the public and subjecting it to judicial scrutiny was deemed unwise and potentially detrimental. The courts also stated they are ill-equipped to handle matters of national security and make value judgments of a non-judicial nature.
Historical Context of Article 150 Amendments

Article 150 of the Federal Constitution deals with the proclamation of a state of emergency. The 1981 amendment, Act A514, specifically introduced provisions that limit the scope of judicial review concerning such proclamations. Historically, amendments to Article 150 have been made to address various circumstances and to clarify the powers and procedures related to declaring emergencies. The intent behind such amendments generally revolves around ensuring the government's ability to respond effectively to grave threats to national security, public order, or the economy, while also defining the boundaries of executive and judicial powers in these critical situations.

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Why did the lawyer challenge the 1981 constitutional amendment?

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