Bringing the Ordinances to an end

The Yang di-Pertuan Agong is not a rubber stamp and is entitled to any information available to the Cabinet, and has a right to advise, caution and warn.

TOWARDS the end of July, a constitutional debate was raging about whether the Cabinet can revoke Emergency Ordinances promulgated by the Yang di-Pertuan Agong under Article 150(2B). The debate was triggered by some political events whose effect will reverberate in constitutional annals for a long time.

On July 22, four days before Parliament was to meet, the Prime Minister advised the King to sign an Order to revoke six Emergency Ordinances promulgated by the King during the 2021 Emergency. The King declined and instead urged the PM to seek their annulment in Parliament under Article 150(3) rather than use royal powers to pre-empt parliamentary scrutiny.

On July 26 when Parliament met, a debate on the Ordinances was not allowed due to the surprise announcement by the Law Minister that the Cabinet had already revoked the Ordinances and as such any motion to debate or annul was unnecessary. This triggered an animated debate in and outside Parliament on whether the Cabinet has power to revoke an Ordinance without the consent of the King.

Supporters of the Cabinet move put forward many interesting arguments to articulate their views.

First, as the King is bound by Cabinet advice under Articles 40(1) and 40(1A), the real decision to revoke is that of the Cabinet and not of the King. A draft Revocation Order was sent to the King, and His Majesty had a constitutional duty to follow advice.

Second, there is a decided case – Datuk Seri Anwar Ibrahim v Perdana Menteri, Malaysia (1999) – that in areas where the King is bound by advice, it is sufficient to inform the King, and the King’s consent is a mere formality. This case involved the dismissal of Anwar, then the deputy prime minister, by then prime minister Tun Dr Mahathir Mohamad. The court held that as there was no prescribed format of requiring any particular person to sign the letter of revocation, the PM himself could sign it as long as the King was advised and informed about the decision.

Third, Article 150(3) does not specify as to who may revoke an Ordinance. Therefore, the Cabinet is entitled to exercise the power if the King disregards Articles 40(1) and 40(1A).

Fourth, Article 66(4A) allows the Cabinet to bypass the King in the legislative process after 30 days.

On the other side of the spectrum, many arguments were made to rebut the bold suggestion that the Cabinet is armed with power to revoke an Ordinance.

First, though the King is bound by Cabinet advice under Article 40(1), he is not a rubber stamp and is not obliged to sign papers as and when they are submitted to him. Under Article 40(1), he is entitled to any information which is available to the Cabinet. He has a right to advise, caution and warn, and to delay. For example, Sultan Azlan Shah, our illustrious ninth Yang di-Pertuan Agong (1989 to 1994), was known to read through every Bill that was presented to him for royal assent and often to summon the Attorney General for explanation.

On July 22, besides his desire not to marginalise Parliament, the present King had the right to seek counsel from the Independent Special Committee created under Section 2(1) of the Emergency Essential Powers Ordinance 2021. One of the Ordinances recommended by the Cabinet for revocation was the Emergency Ordinance (Prevention and Control of Infectious Diseases) (Amendment) 2021, which has a direct bearing on the war against Covid-19.

Second, in response to the view that Article 150(3) does not specify as to who may revoke, it is recognised by Mark Koding v PP that the power to promulgate and revoke Ordinances belongs to the Yang di-Pertuan Agong.

Bar Council member New Sin Yew puts it succinctly: “Revocation is a legislative act that requires legal rules to be followed. The authority to revoke the Ordinances is the same authority that made them – the King.”

Third, if the argument is correct that in the event the King refuses to revoke an Ordinance, the Cabinet can revoke the Ordinance, then the corollary follows that that if the King refuses advice to declare an Emergency (as the King refused in October 2020), the Cabinet can then proclaim the Emergency without participation of the King! In fact, in all the nine national and local emergencies declared from 1964 to 2021, the Proclamation always came from the King, in his name and under his seal.

Fourth, in administrative law, power must be exercised in accordance with procedure. All Ordinances are notified in the Gazette. Repealing Ordinances must likewise be gazetted under section 18 of the Interpretation Acts 1948 and 1967. The purported revocation by the Cabinet was never gazetted. On Aug 3, the PM graciously acknowledged this fact that the procedure for revocation of the Ordinances was not completed.

Fifth, Article 66(4A) does indeed permit the King to be bypassed in the legislative process after 30 days. However, Article 66(4A) deals only with Bills passed through Parliament and has no relevance to Emergency Ordinances by the King under Article 150. In any case, on July 26, the 30-day period had not expired.

In sum, the claim of revocation by the Cabinet suffered from lack of jurisdiction and non-compliance with procedure.

Moving on, now that the sands of time have run out on the Emergency of Jan 11, 2021, how can the six Emergency Ordinances come to an end? One can explore five ways.

> Under Article 150(7), all Ordinances have a grace period of six months after the end of the Emergency. At the end of the six months, the Ordinances lapse automatically.

> However, if an Ordinance or a provision of an Ordinance contains a time limit or sunset clause shorter than six months, then Article 150(7) does not apply, and the Ordinance or specified provisions of the Ordinance expire once the time limit expires. For example, the Emergency Essential Powers Ordinance 2021 of Jan 14, 2021 contains many provisions whose shelf-life is explicitly limited by the words “for as long as the Emergency is in force”. For this reason, sections 3(1), 4(1), 6(1), 7(1), 8(1), 11(1), 12(1), 13(1), 14(1), 15(1), 16(1) and 17(1) came to an end with the end of the Emergency on Aug 1.

> During an Emergency, the King has the power under Article 150(3) to revoke an Ordinance. However, with the end of the Emergency, Article 150(3)’s power of revocation is no longer available. The King’s power to legislate or revoke an Ordinance derives from Articles 150(2B), 150(2C) and 150(3). Once Emergency ends, this fountain of power is dry.

> On the same reasoning as above, the power and procedure of Article 150(3) to annul by a simple resolution in both Houses is no longer available to Parliament. With the end of the Emergency, Parliament now returns to its plenary law-making powers.

> Under its plenary law-making powers, Parliament can repeal, re-enact or amend any law made previously, including an Ordinance promulgated by the King. Such repeal must be accomplished in the normal way of making laws, and not by a simple resolution in both Houses. A Repealing Act rather a simple resolution in both Houses is recommended.

The author is Holder of the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are the author’s own.