Understanding the Proclamation of Emergency in Malaysia

On 11 January 2021, the Yang di-Pertuan Agong declared a nationwide state of emergency that will be enforced until 1 August 2021 (“Proclamation of Emergency”). To understand the effect of such proclamation, it is necessary to take a glimpse into the foundation of the Federal Constitution (“FC”).

Federation Constitution is the Supreme Law of Malaysia

On 31 August 1957, following the proclamation of the Declaration of Independence, it was acknowledged that Malaysia is a constitutional monarchy based on Parliamentary Democracy. Under this system of government, the country’s FC represents the supreme law of Malaysia, as enshrined in Article 4(1) of the FC. Any law passed which is inconsistent with the FC shall, to the extent of the inconsistency, be void.

Also embedded in the FC is the separation of power into three branches of our Government, i.e., the Legislative (Parliament), Executive (Government) and Judiciary (Court), which are to check and balance each other’s functions and powers. The separation of powers, therefore, form the basic structure of the FC.

Powers of the Yang di-Pertuan Agong under the FC

Under Article 40(1) of the FC, the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet.

Article 150(1) and (2) of the FC empowers the Yang di-Pertuan Agong to make a proclamation of emergency if His Royal Highness is satisfied that a grave emergency exists whereby the security, or the economic life, or the public order in the Federation (Malaysia) or any part thereof is threatened or there is an imminent danger of the occurrence of such event (“Emergency”).

In Teh Cheng Poh v PP,^[1] the Court at page 52, said:

“…So when one finds in the Constitution itself or in a Federal law powers conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affair exists or that particular action is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the Cabinet, or the opinion or satisfaction of a particular Minister to whom the Cabinet have delegated their authority to give advice upon the matter in question.”

The subsequent insertion of Article 40(1A) to the FC, effective 24 June 1994, provides:

1. 1. 40. Yang di-Pertuan Agong to act on advice

…

(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.

Effect of the Proclamation of Emergency

(a) Functions of the Executive (commonly known as the “Government of the Day”)

Pursuant to Article 150(2B) of the FC, where both Houses of Parliament are not sitting concurrently^[2] during the period of the Emergency, the Yang di-Pertuan Agong may promulgate ordinances (“Emergency laws”), if His Royal Highness is satisfied that certain circumstances exist which render it necessary to take immediate action. On a further reading of Article 150(6) together with (6A) of the FC, the Emergency laws are deemed valid even if they are inconsistent with the FC^[3].

Presently, both Houses of Parliament are not in session. As such, the Yang di-Pertuan Agong may, or if upon advice of the Cabinet, must promulgate ordinances, without having to comply with the necessary procedures or the proportion of the total votes required in the Houses of Parliament^[4].

 Wherefore, on 14 January 2021, the Yang di-Pertuan Agong promulgated the Emergency (Essential Powers) Ordinance 2021 (“Ordinance 2021”)^[5]. The Ordinance 2021 is deemed to have come into operation on 11 January 2021^[6]. For ease of reference, the salient points of the Ordinance 2021 are set out in Annexure “A”. The Ordinance 2021 shall have the same force and effect as an Act of Parliament,^[7] until it is revoked or annulled by both Houses of Parliament, or until it lapses at the expiration of six months beginning with the date of cessation of the Proclamation of Emergency. By virtue of Section 18 of the Ordinance 2021, the provisions of the Ordinance 2021 shall prevail over any provision of the existing written law.

(b) Functions of the Legislature (commonly known as the “Parliament”)

The FC does not suspend the function of the Parliament to make laws during the operation of the Proclamation of Emergency. Article 150(2B) of the FC, which empowers the Yang di-Pertuan Agong to make Emergency laws, only operates when both Houses of Parliament are not sitting concurrently. In Teh Cheng Poh v PP,^[8] the Court ruled that the Yang di-Pertuan Agong would lose his legislative powers to make emergency laws once Parliament had convened.

Even in the present state of Proclamation of Emergency, the Parliament may, notwithstanding anything in the FC, make laws in respect of any matter by reason of emergency, except matters regarding Islamic and native laws.^[9] Further, the Parliament may continue to safeguard the basic structure of the FC, by carrying out check and balance of the functions exercised by the Executive. This is so provided in Article 150(3) of the FC, whereby it shall be laid before both Houses of Parliament the Proclamation of Emergency[10] and the Ordinance 2021, and the Parliament may pass a resolution to annul the Proclamation of Emergency and the Ordinance 2021.

Notwithstanding the above, under Sections 12 to 15 of the Ordinance 2021, the sitting and election of both Parliament and State Legislative Assembly are now being placed at the discretion of the Yang di-Pertuan Agong. Article 150 of the FC is silent on the suspension of the sitting and election of both Parliament and State Legislative Assembly when a proclamation of emergency is in force. In this regard, it would be helpful to refer to one of the prerequisites to promulgate an ordinance, that is, the presence of an urgency.

In light of the spike of COVID-19 cases nationwide, there is an immediate need to legislate and provide power to authorised persons to take necessary measures to combat COVID-19. However, it raises an intriguing question whether, and it is submitted that it is a matter reviewable by the Judiciary as to the proportionality to include the provisions to suspend the sitting of both Parliament and State Legislative Assembly in the Ordinance 2021.

(c) Functions of the Judiciary (commonly known as the “Court”)

In view of the foregoing, the role of Judiciary in the check and balance mechanism becomes crucial. It is a cardinal principle of law that the Judiciary is the ultimate interpreter of the FC and hence, the guardian to ensure that the Executive and the Legislature act within their constitutional limits. Where the exercise of powers by the Executive and the Legislature is ultra vires (wrong in law), it is the duty of the Court to intervene by way of judicial review as enshrined within Article 4(1) of the FC.

In 1967, the Federal Court in Stephen Kalong Ningkan^[11]by a majority judgment ruled that the circumstances which brought about the state of Emergency are non-justiciable. Upon appeal, the Privy Council^[12] opined that “whether a Proclamation under statutory powers by the Supreme Head of the Federation can be challenged before the courts on some or any grounds is a constitutional question of far-reaching importance which, on the present state of the authorities, remains unsettled and debateable^[13]”. The Privy Council left the question unanswered and to be dealt with in future proceedings which makes that course necessary.

In 1978, the Court in Teh Cheng Poh v PP^[14] had the opportunity to review the exercise of power by the Yang di-Pertuan Agong to proclaim an area as a security area pursuant to a Federal law. The Court opined that the Judiciary has the jurisdiction to inquire whether the purported exercise of the discretion was ultra vires. However, in 1981, the Parliament amended the FC^[15] and inserted Article 150(8), which came into force effective from 15 May 1981.

In essence, Article 150(8) of the FC provides that the validity of a proclamation of emergency and any ordinance promulgated during such proclamation cannot be determined by the courts. The effect of Article 150(8) of the FC was discussed in Dato’ Seri Anwar Ibrahim v PP^[16] in relation to an argument on abuse of process. The Federal Court said that by virtue of Article 150(8) of the FC, the Court has no jurisdiction to entertain or determine any application regarding the validity of the continuance in force of the ordinance.

In Lim Jen Hsian v Ketua Pengarah Jabatan Pendaftaran Negara^[17] the Court of Appeal encountered an ouster clause in Section 2, Part III, Second Schedule of the FC, whereby it provides that a decision of the Federal Government on citizenship shall not be subject to appeal or review in any Court. The Court of Appeal held that such ouster provision does not preclude the jurisdiction of the Court from entertaining a judicial review application.

Determination of Compensation

The ouster clause in Section 5(2) of the Ordinance 2021 which prevents challenge to the Court against the assessment of compensation in respect of the possession or utilization of any land, building or movable property, or resources made under Section 5(1) of the Ordinance 2021, raises another point of concern. The possible implication of Section 5(2) read in the context of Section 5(1) of the Ordinance 2021 is that it appears to usurp the judicial power of the Courts to decide on and award compensation.

In this regard, the Federal Court’s recent decision in Maria Chin Abdullah v Ketua Pengarah Immigration^[18] recognised that the presence of ouster clauses would never deter the Court from examining any dispute or complaint that is referred to the Court. The Court is entitled to examine, evaluate and assess the exercise of power. In light of the above, it is submitted that the Judiciary should have the judicial power to hear any challenge brought before the Court.

This view can be substantiated by the apex court’s decisions in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case^[19]and Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals^[20]where the apex court reaffirmed the principle that judicial power resides with the Judiciary.

The apex court in the aforementioned cases also allowed the Courts to declare legislations removing basic features of the constitutions to be void. Nonetheless, the majority decision of the Federal Court in Maria Chin Abdullah (supra) held a different view on the application of the doctrine of basic structure. A further deliberation and decision by the Federal Court directly on this important constitutional point would be of public interest. In this regard, our Chief Justice in the recent decision of Maria Chin Abdullah (supra), said albeit in minority, and we so quote “The supremacy of the FC in Article 4(1) and its corollary device of judicial power are basic features of the FC. Accordingly, the power of the Court to scrutinise State action whether legislative, executive or otherwise, cannot be excluded.”

Can the Proclamation of Emergency be revoked sooner?

Pursuant to Section 2 the Ordinance 2021, there shall be an independent special committee to advise the Yang di-Pertuan Agong on the need to continue the Proclamation of Emergency. Thus, the Proclamation of Emergency may be revoked sooner before its expiry where circumstances warrant it.

In this regard, Lord Diplock when presiding in the Privy Council in Teh Cheng Poh^[21]at page 55, said “Article 32(1) of the Constitution makes the Yang di-Pertuan Agong immune from any proceedings whatsoever in any court. So mandamus to require him to revoke the Proclamation would not lie against him; but since he is required in all executive functions to act in accordance with the advice of the Cabinet, mandamus could, in their Lordships’ view, be sought against the members of the Cabinet requiring them to advise the Yang di-Pertuan Agong to revoke the Proclamation.”