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The Emergency Extravaganza

Believe it or not, the older generations of Malaysians are, by now, well accustomed to states of emergency. During Malaysia’s formative years, that being from 1948 – 1960, a state of emergency was implemented to combat the communist threat. Then again in 1964, due to Indonesia’s aggression, or ‘konfrontasi’, another emergency was raised. Numerous more emergencies, in 1966, 1969, 1977 were also raised, lending the belief that Malaysia was in a constant state of emergency, notwithstanding the nations relative stability. Now again, in the current year, another emergency has been implemented. This time, however, it is a little different.


When the emergency was initially raised, on the 12th of January 2021, the motivation of its implementation was promptly questioned due to its unfortunate timing. Indeed, whilst the government touted the emergency as being to combat Covid-19, and its cataclysmic effects on Malaysia, as one commentator stated, the proclamation “may be more of a bid by Prime Minister Muhyiddin Yassin to preserve his slipping grip on power”.[i] Following, the Yang di-Pertuan Agong's (YDPA) initially rejected the government’s call, explaining that, amongst other reasons, “Al-Sultan Abdullah is of the opinion that there is no need right now for His Royal Highness to declare a state of emergency”.[ii]


Before proceeding, it is important to discuss what exactly is a state of emergency, and how it is gazetted. In short, the concept of emergency powers runs in antithesis to constitutionalism; constitutionalism connotes a system of checks and balances whilst the former seemingly forgoes such measures. The use of such drastic plenary powers is meant to combat an existential threat, a stepping out of the constitutional bounds to alleviate a greater catastrophe; Covid-19 is a legitimate example of such a threat. These powers are contained in the now-infamous Article 150, which drastically changes the sources and mechanism of law creation, whereby the YDPA, or in practise the cabinet[iii], may promulgate ordinances that have the same force and effect of an act of Parliament (Article 150(2B)).

In order for a state of emergency to be gazetted, however, Article 150(1) merely requires the YDPA to be “satisfied that a grave emergency exists” and as mentioned, the YDPA was anything but satisfied. Nevertheless, in reality, it is the Cabinet who truly makes the decision, and by virtue of Article 40(1), the “Yang di-Pertuan Agong shall act in accordance with the advice of the cabinet or of a Minister acting under the general authority of the Cabinet. Furthermore, this has been confirmed by the Federal Court in Abdul Ghani bin Ali v Public Prosecutor[iv], which stated as follows:


“It is my considered view, based on the constitutional provisions and the authorities cited, that the Yang di-Pertuan Agong, in acting under cl (1) of art 150 of the Constitution in the position of a constitutional monarch, must act on the advice of the Cabinet as provided in art 40 of the Constitution.”


As for the effects of a state of emergency, once a proclamation of emergency is gazetted, the floodgates of checks and balances are lifted temporarily. For instance, 150(2)(c) explains that an ordinance promulgated under clause (2B) shall have the same force and effect as an act of parliament. The cumulative effect of articles (2B) and (2C) is that the YDPA will have the power to promulgate ordinances to any matter (with exceptions) and without regard to normative procedures set within the constitution, including fundamental liberties enshrined under Part II of the Constitution. The broad legislative power conferred upon the legislative branch has the additional effect of temporarily collapsing the separation of powers enshrined under the constitution. As Raja Azlan Sha in Johnson Tan Han Seng[v] explains:


“The YDPA has plenary powers of legislation similar to those of Parliament itself’ and therefore may delegate such powers. As will be seen, emergency ordinances directly undermine the separation of powers, rule of law, federalism and by extension, derogates constitutionalism yet are justified within certain parameters.”


These certain parameters, whilst rather opaque, does highlight the type of situation required, an event unprecedented. Covid-19 fits the bill. In any event, whilst it is certainly the case that the cabinet rightfully had the power to gazette the state of emergency, the use of such powers should not be downplayed, yet the impetus for such was vehemently questioned. In the highly publicised case of Datuk Seri Salahuddin bin Ayub[vi], the Applicants filed for judicial review, claiming that the state of emergency was unconstitutional and in conflict with the fundamental rights enshrined under the constitution and the separation of powers. Indeed, the timing of the proclamation led many to the same conclusion, being seen as a step of preserving the current government's dwindling power.


The High Court, however, in rejecting the Applicants claims, held that as Article 150(8) ousts judicial review, the emergency powers were not up to question and that the Applicants had failed to show that:


“[140] … the decision made by the YDPA to proclaim emergency, and that the fact His Majesty was acting on the advice of the Prime Minister was as a result of illegality, unreasonableness or irrationality and procedural impropriety”.


Whatever one’s view is towards the matter, it is the case that, whilst the proclamation was constitutional, the entire endeavour lacked transparency. Taking place at the precipice of a political power struggle, many deemed, right or wrong, that the act was a tactical manoeuvre. Sadly, this trend carried on with the revocation of emergency.

 

The manner in which an emergency can be revoked is a source of controversy for legal academics in Malaysia. Article 150(3) states as follows:


“A proclamation of emergency and any ordinance promulgated under Clause (2B) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such proclamation or ordinance,[emphasis mine] but without prejudice to anything previously done by virtue thereof or to the power of the Yang di-Pertuan Agong to issue a new proclamation under Clause (1) or promulgate any ordinance under Clause (2B)."


With the provision in mind, commentators such as Mark Goh[vii] has argued that ordinances made during an agency can only be revoked via the YDPA, or by a resolution provided for by both Houses of Parliament. Yet, if the YDPA can revoke emergency ordinances, would Article 40 not come into effect so that the cabinet, or a minister of that cabinet, could revoke that ordinance? Indeed, such was the opinion of Rosli Dahlan, who stated:


“It is also clear that by virtue of Article 40 of the Federal Constitution, the YDPA is constitutionally bound to accept the advice of the Government and act in accordance with such advice. The only instances of personal discretion for the exercise of any power provided to the YDPA is when the words “in his discretion” are used. This principle was codified by the amendment of the Federal Constitution. The principle has been affirmed by the Federal Court and has been repeated and adopted multiple times… When we examine Article 150(3) with the statements of the Law Minister, it is clear that there has been no misleading of Parliament or any constitutional violation.”[viii]


Even so, it is rather suspect that the announcement came in the way it did, out of the blue. To cut a long story short, the revocation of the emergency, which restores the all-important separation of powers, appeared to be, by virtue of the procedural steps taken, an act to eliminate the possibility that the annulment would be debated in parliament. Another repeated act of the executive taking power away from the legislatures. In addition, the unprecedented step of announcing the revocation prior to informing the YDPA is simply puzzling considering the constitutional norms which have shaped our country. Consequently, the YDPA was of the view that:


“The hasty revocation and the "contradictory and misleading" statement in the parliament have failed to respect the rule of law enshrined in the Rukun Negara (National Principles), while also diminishing the function and powers of the king as the head of state” [ix].


The state of emergency in 2021 was, without question, an unprecedented event. Whilst it is certainly apparent that the situation plaguing our nation warranted such a response, the manner in which it was carried out was simply suspicious. Indeed, when one considers the constitutional ramifications which a state of emergency imparts, the YDPA’s initial rejection of the emergency’s implementation, and the failure of the government to inform the YDPA about its annulment, the entire circumstance appears to be anything but clean.


 

References


[i]https://www.voanews.com/east-asia-pacific/motivation-behind-malaysias-state-emergency-questioned

[ii]https://www.malaymail.com/news/malaysia/2020/10/25/agong-says-no-need-for-a-state-of-emergency/1916182

[iii] Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50

[iv] Abdul Ghani bin Ali v. Public Prosecutor [2001] 3 MLJ 561

[v] Johnson Tan Han Seng v. Public Prosecutor [1977] 2 MLJ 66

[vi] Datuk Seri Salahuddin bin Ayub & Ors v Perdana Menteri, Tan Sri Dato’ Hj Mahiaddin bin Md Yasin & Anor

[2021] MLJU 967

[vii] https://www.malaysiakini.com/letters/585132

[viii]https://www.theedgemarkets.com/article/constitutional-crisis-%E2%80%94-legal-opinion

[ix]https://www.channelnewsasia.com/asia/malaysia-emergency-ordinances-king-no-consent-parliament-debate-2072866



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