Implications of a state of emergency

SINCE independence in 1957, Malaya/Malaysia has experienced three national Emergencies – Indonesian confrontation (1964), May 13 (1969), and the Covid Emergency declared on Monday. In addition, there have been five localised Emergencies – Sarawak (1966), Kelantan (1977), Batu Sapi, Grik and Bugaya (2020).

Definition: Under Article 150(1), the term “emergency” refers to threats to the security, economic life or public order of the Federation or any part thereof.

In Stephen Kalong Ningkan (1968), it was held that “emergency” includes wars, famines, earthquakes, floods, epidemics and collapse of civil government.

The Covid-19 pandemic clearly qualifies as an Emergency.

However, whether it could have been adequately combated under the National Security Council Act and the Infectious Diseases Control Act is a matter of opinion.

Whose power? There is scholarly dispute over whether the words of Article 150(1) “If the Yang di-Pertuan Agong is satisfied” confer a subjective power on the King to declare Emergency in his discretion or whether His Majesty is required to act in accordance with the advice of the Prime Minister under Article 40(1) and 40(1A).

Cases like Teh Cheng Poh (1979) hold that any reference to the satisfaction or opinion of the Yang di-Pertuan Agong is in reality a reference to the collective opinion or satisfaction of the Cabinet. But other cases like Mohd Amin Mohd Razali (2000) confer personal discretion on the King in some circumstances, like during a dissolution.

It is submitted that in our system of constitutional monarchy, the King is not authorised to proclaim an Emergency on his own or to refuse the advice of a PM who has a clear majority in Parliament.

However, when approached by the PM, the King is not required to act mechanically. His Majesty is entitled to seek further information, advice, caution, warn and delay. But, ultimately, he must accept the advice of a PM who commands the confidence of Parliament.

However, in all those circumstances where the PM lacks majority support in the House, the King would have reserve powers to act in the broader interest of the nation.

Effect of an Emergency: Once a proclamation of Emergency is gazetted, the floodgates are lifted and extraordinary legislative powers gush forth in abundance.

The legislative authority of Parliament (if Parliament is in session) becomes greatly widened.

Parliament can violate fundamental rights, trespass on state powers, and pass any laws by a simple majority. The consent of the Conference of Rulers and the Governors of Sabah and Sarawak is not needed.

Judicial review on constitutional grounds becomes difficult if not impossible because of Article 150(6), which states that no provision of an Emergency law shall be invalid on the ground of inconsistency with the Constitution. Article 150(8) bars judicial review of Emergency legislation.

King’s powers: If the two Houses of Parliament are not sitting concurrently when Emergency is declared, the Yang di-Pertuan Agong may act under Article 150(2B) to promulgate Ordinances having the force of law. An Emergency ordinance represents the only instance under the Constitution when the executive acquires primary and parallel legislative functions.

Time limit: Neither a proclamation of Emergency nor an Emergency law has any time limit. It is, therefore, commendable that the proclamation on Monday comes with a sunset clause and the possibility of an earlier end on the advice of a non-partisan Council.

Executive powers: While a proclamation is in force, the executive authority of the Federation extends to any matter within the legislative authority of a state.

Under Article 150(4), the Federal Government can give directions to the states or any of its officers. This means the constitutional separation between the federal and state executive can be ignored.

It is clear, therefore, that emergency powers in Article 150 provide the basis for a special legal system that is parallel to and superior than the legal order established under the Constitution.

Limits: Despite the above, some misconceptions must be corrected. There is a popular but mistaken view that once an Emergency is proclaimed, the Constitution is automatically suspended, Parliament is dissolved, Cabinet is dismissed, elections are postponed, human rights are suspended, and the Federal Government automatically acquires state powers.

Actually, a proclamation of Emergency does not automatically suspend any law or institution or procedure. It only opens the gates to the enactment of Emergency laws by Parliament or the Yang di-Pertuan Agong if they so choose.

One must distinguish between an Emergency proclamation (which is just a declaration) and an Emergency Act or Ordinance, which provides the law.

The Constitution: During an Emergency, the Constitution and ordinary laws are not automatically suspended, though they can be. Further, there is a presumption that any Emergency law’s inconsistency with the Constitution must be express, not implied: Lee Mau Seng (1971). Under an Emergency law, provisions of the Constitution can be eclipsed but not repealed and will revive six months after the Emergency ceases.

Parliament: Parliament is not automatically required to be sent off on prorogation or dissolution, though the government acquires the power to do. It is understood that presently the Federal Parliament and State Assemblies will be suspended but not dissolved.

Article 55(1) requiring no more than six months between two sessions may be suspended.

Elections every five years need not be held. It is noteworthy, however, that during the Emergency era of 1964 to 2011,11 general elections were held and federal and state legislatures elected.

This time around, however, Sarawak’s 82-seat state election due on or before Aug 17 may have to be postponed.

If during the period of this Emergency, no federal or state elections are held to avoid a spike in Covid-19 cases, party-hoppers will be deprived of the nefarious opportunity to bring about the fall and rise of governments, as happened eight times between 2018 and 2020 – at the federal level, in Sabah (twice), Perak (twice), Johor, Melaka and Kedah.

If there is political stability and continuity, this may help economic recovery and invite foreign investment.

Human rights: Fundamental rights are not automatically rendered ineffective, though Parliament acquires the power to abridge them.

Courts: The courts of the land remain in operation and are not replaced by military courts. Habeas corpus is not suspended. All rights and privileges and all institutions and procedures remain in effect unless an Emergency law explicitly says to the contrary.

Civilian government: The army does not take over. Curfew is not declared. A civilian government (Cabinet) remains in place unless an Emergency law provides otherwise.

Substantive limits: All Emergency laws, whether by Parliament or the Yang di-Pertuan Agong, have to comply with the requirements of Article 151, which deals with safeguards for preventive detainees.

Under Article 150(6A), no Emergency law can touch on matters of Islamic law, custom of the Malays, native law or custom in Sabah and Sarawak, religion, citizenship, or language.

If Emergency comes to an end, it is provided in Article 150(7) that any laws made during the Emergency will cease to have effect after a grace period of six months beginning from the date on which the proclamation of Emergency ceases.

Hopefully, the newly-acquired Article 150 powers will be used only for combating the health and economic calamities and not for party or political purposes.

This is an area where civil society groups can play a constructive role by alerting the Yang di-Pertuan Agong to the propriety and efficacy of the Emergency Ordinances that will be issued from time to time in his name.

The author is Holder of the Tunku Abdul Rahman Chair at UM, Tun Hussein Chair at ISIS (Malaysia) and Emeritus Professor at UiTM. The views expressed here are the writer’s own.

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