Present constitutional dilemmas


  • Reflecting On The Law
  • Thursday, 09 Apr 2020

EXCEPTIONAL crises call for exceptional responses. However, in a democratic society, the measures adopted must preserve human dignity and show fidelity to the Federal Constitution and to the principles of rule of law.

Over the last three weeks, several constitutional issues have washed up against our shores. Two of them will be covered in this article.

One is the deployment of the armed forces to enforce the movement control order (MCO) and the other is the exceptional stimulus package proposed by the executive without the authority of Parliament.

Use of armed forces: The armed forces have been called out to assist the police to enforce the Prevention and Control of Infectious Diseases Act and its derivative Regulations.

This has aroused some anxiety. Is the employment of the armed forces to ensure law and order permitted by the Armed Forces Act and the Police Act? Is this a precursor to army rule?

The fear of army rule has no basis. The Malaysian Royal Military Police Corps has a long history of assisting the Malaysian police in providing security and law enforcement.

However, army participation is subject to civilian control. It would be a waste of precious resources if the 106,000 army personnel did not put their expertise to use in these exceptional times. This should especially be so for the 461 military medical officers and five military hospitals with field deployment capability.

There are laws to enable the health authorities to seek assistance from other government departments. Section 5 of the Prevention and Control of Infectious Diseases Act is one such law.

Under Sections 5, 18, 19 and 24 of the controversial but subsisting National Security Council Act, the National Security Council (NSC) can control and coordinate all “Government Entities” on operations concerning national security.

Under Section 18(1), the expression “security in any area” is defined broadly to include any threat by any person, matter or thing likely to cause serious harm to the people, economy or any other interest of Malaysia.

The NSC’s powers are not limited to wars, insurrections or riots but extend to economic threats as well.

Economic package: On March 27, Prime Minister Tan Sri Muhyiddin Yassin announced a generous RM25bil economic stimulus package. On April 6, an additional RM10bil was allocated for small and medium enterprises (SMEs).

As Parliament is under prorogation, there is no democratic legitimacy for these initiatives. It must be noted, however, that in late February, then interim prime minister Tun Dr Mahathir Mohamad had announced a similar economic stimulus package of RM20bil without any parliamentary authority.

The constitutional issue is where will the monies come from that the government intends to spend.

First, the money could be raised as a negotiated loan from abroad or domestically. The executive is permitted to do this by Schedule 9, Federal List, Item 7(c) but subject to ultimate parliamentary approval.

Second, the Finance Minister could dip into the Contingencies Fund existing under Article 103 of the Constitution to deal with urgent and unforeseen needs.

Whether the Contingencies Fund has enough balance to support these extraordinary expenses is another matter.

The spending must then be retrospectively ratified by Parliament by way of a supplementary estimate and a Supply Bill to replace the amount so spent.

The PM has announced that when Parliament convenes in May, a Supplementary Budget will be tabled to ratify this expenditure.

Third, owing to the magnitude of our problem and its urgency, Parliament could utilise its special powers under Article 102 of the Constitution to authorise extraordinary expenditure by or for our frontline agencies and personnel.

Regrettably, Parliament is not in session to make use of Article 102.

Fourth, could this money come from the Supply Act passed last year for the year 2020 under Article 104(1)(b)?

During the Budget session last year, Parliament passed a Supply Act 2020 (Act A1608) of RM297bil for all the relevant ministries, government departments and statutory bodies.

Of this, RM241bil was for operating expenses and RM56bil for development expenditure.

The Health Ministry was allocated RM29.7bil for 2020.

Due to the health crisis, could allocations approved by Parliament for one ministry be transferred to another agency or another purpose by the executive on its sole authority?

It is submitted that the law does not permit the executive to resort to such drastic reallocation.

Article 101 specifies that if an appropriation is insufficient, or if no appropriation was made, or if expenditure exceeds the money allocated, then the executive must go back to Parliament with a supplementary estimate and a Supply Bill. Parliament’s ratification is needed.

It appears, therefore, that despite very noble intentions, the government cannot withdraw any money for the stimulus package from the nation’s Consolidated Fund without parliamentary authorisation.

What can be done to tackle the issue? From the constitutional point of view, three courses of action may be adopted to legalise the stimulus package.

One, the PM should rely on the Dewan Rakyat’s Standing Order 11(3) to convene an urgent, one-day meeting of the Dewan Rakyat to deliberate on the content and efficacy of the stimulus package and to obtain a resolution.

In this special session, no other issue, including a vote of confidence or no confidence, should be allowed by Mr Speaker. If “social distancing” is an issue, then two techniques can come to our aid.

First, the MPs and Mr Speaker could do an unprecedented but manageable video conference. Second, an imaginative use could be made of the quorum rule under Standing Order 13. Twenty-six MPs are enough to permit the business to proceed.

The government and the Opposition can agree to limit the attendees to about 50 with both sides contributing 25 MPs each to enable a meaningful discussion and yet observe some social distancing in the 222-member House.

Two, and this appears to be the preferred course by the PM, the government can rely on Article 101 to prepare a supplementary estimate showing the sums required or spent and lay a Supply Bill in the Dewan Rakyat when Parliament meets in May.

Three, the Yang di-Pertuan Agong, acting on the advice of the prime minister, could proclaim an emergency under Article 150 and then promulgate such Emergency Ordinances under Article 150(2B) as circumstances appear to him to require to meet the health and financial emergency.

It is hoped that immediate parliamentary participation will be chosen to show due respect to this august institution and comply with traditions of democracy.

Emeritus Professor Dr Shad Saleem Faruqi is holder of the Tun Hussein Onn Chair at the Institute of Strategic and International Studies Malaysia. The views expressed here are entirely the writer’s own.
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