By: Yap Wen Han (BAC Apprentice)
On 11 January 2021, the Yang di-Pertuan Agong on the advice of the Cabinet, declared a nationwide state of Emergency in accordance with the article of the Federal Constitution to curb the spread of Covid-19 cases. The proclamation of Emergency under Article 150 of the Federal Constitution was followed by the Emergency (Essential Powers) Ordinance 2021 gazetted by the Government on the following day (12 January 2021). The period of emergency commenced on 11 January 2021 and is enforced until 1 August 2021.
What is the Federal Constitution and Emergency Ordinance 2021?
Essentially, Article 150(1) of the Federal Constitution confers a seizing power to the King that His Majesty shall issue a Proclamation of Emergency if he acknowledges that a grave danger exists, threatening the country’s security, economic life or public order. With the Covid-19 pandemic affecting the health and wellbeing of the people, the government was left with the option to declare state of Emergency. According to the Privy Council decision in PP v Teh Cheng Poh, the issuance of Proclamation of Emergency is exercised by the Yang di-Pertuan Agong in accordance with the advice of the Cabinet under Article 40 (1) of the Federal Constitution.
Under the Federal Constitution and Emergency (Essential Powers) Ordinance 2021, the Constitution and Emergency Ordinance confers necessary powers upon the government to curb the spread of Covid-19 Pandemic. Among the necessary powers conferred to the government under the Emergency Ordinance 2021 are:
During the period of ‘state of emergency’, the House of Parliament and State Legislatures will not convene in accordance with Article 150 of the Federal Constitution. Instead, the YDPA may summon, dissolve or prorogue the House of Parliament or State Assemblies after the consultation with the respective Rulers or the Governor as he thinks fit and appropriate by virtue of the provisions of the Emergency Ordinance. Furthermore, federal or state election shall not be held during the period of emergency if a member of parliament or state assemblyperson passes away, or there are vacancies in the federal or state constituencies under the provisions of the Emergency Ordinance 2021.
Another legislative effect of Emergency Ordinance is it shall have the same effect as an Act of Parliament by virtue of Clause (2C) of Article 150 of the Federal Constitution. The satisfaction of YDPA if a grave emergency exists in the country, the contents of the Emergency Ordinance under Clause (1) and (2B) shall be final and conclusive and it shall not be challenged or questioned in any court on any ground by virtue of Clause (8) of the Article 150 of Federal Constitution. In the same clause, the validity, continued operation or continuance of proclamation under Article 150 of the Federal Constitution shall not be questioned or entertained by any court as the court do not possess the jurisdiction to determine any application, question or proceeding pertaining to the Proclamation of Emergency. However, the Emergency Ordinance may be revoked or annulled by the House of Parliament provided both Houses have passed a resolution to annul such Proclamation. Nonetheless, promulgation or ordinance may subsist or be ratified by Parliament as a valid Act of Parliament.
On the other hand, under clause (7) of the Article 150 of the Federal Constitution, the Emergency Ordinance or any ordinance promulgated in pursuance to Proclamation shall cease to have effect after a period of 6 months beginning with the date of Promulgation of Emergency. For instance, the Emergency (Essential Powers) (No. 2) Ordinance 2021 which aims to curb fake news shall cease to have effect after 1 August 2021 with the exception as to the things done or omitted to be done such as spreading false news about Covid-19 vaccines before 1st August 2021.
Other examples of Proclamation of Emergency:
This is not the first time that the Proclamation of Emergency has been declared by the Government. The notable occasion of Proclamation of Emergency was issued during the Malayan Emergency where British Malaya declared a state of emergency against communist insurgents in the country in 1948 for phase one and Malaysian government in 1968 for phase two. Similarly, a proclamation of emergency was declared in Sarawak to oust former chief minister Stephen Kalong Ningkan. Through Article 150 of the Federal Constitution, the Emergency (Federal Constitution and the Constitution of Sarawak) Act 1966 was passed by the parliament to amend Sarawak state constitution to authorise the State Governor to convene a state council meeting for a vote of no confidence against the former chief minister of Sarawak.
What are the limitations of Emergency Ordinance?
Although the emergency ordinance appears to confer vast power to the executive government to promulgate any ordinance that are inconsistent with the Federal Constitution, the emergency ordinance retains some limitation pursuant to Clause (6A) of Article 150 of the Federal Constitution as the emergency ordinance has no application on several matters such as Islamic laws and Malay customs, any native laws in Sabah & Sarawak. Also, Emergency ordinance shall not validate any provisions inconsistent with provisions relating to citizenship, language or religion in this country.
In conclusion, the proclamation of Emergency and emergency ordinance may endorse the executive authority a wide and near-absolute discretionary powers to manage almost every affair in the country. However, it must be exercised with the ultimate objective to protect, to serve and to manage the welfare of the people from the Covid-19 virus.