The exponential increase of recent Covid-19 cases in Malaysia sent a chilling reminder that if the situation is not arrested and continues unabated, the healthcare system would be at a breaking point - much to the consternation of one and all. Unwittingly, it brought forth the arguments that necessitated the Government to intervene vide a declaration of emergency to control the pandemic. Whilst the word “Emergency” has been no stranger to Malaysians within the last few months, it will be instructive to appreciate as to what a Proclamation of Emergency entails. This article seeks to provide a primer of what constitutes an Emergency and its effects towards the administration of the nation.
Declaration of an Emergency
Briefly, an Emergency is declared under Article 150 of the Federal Constitution. It must be declared by the Yang Di-Pertuan Agong (“YDPA”) through the advice of the Prime Minister if the YDPA is satisfied that ‘... a grave emergency exists whereby the security, or the economic life, or public order is threatened’ (emphasis added). However, the YDPA may declare an Emergency before the actual occurrence of such grave emergency if he is satisfied that there is imminent danger of the occurrence of such event[i].
Article 150 is supported by Article 40(1) where the YDPA may only act in accordance to the advice of the Prime Minister[ii]. In order to declare a state of Emergency, the consent of the YDPA must be obtained beforehand. The Federal Court in Stephen Kalong Ningkan v Government of Malaysia[iii] held that the Head of State has the sole discretion when it comes to the Proclamation of Emergency. In the words of Azmi C.J (Malaya):-
“the YDPA should be the sole judge (of whether a grave emergency exists), and when His Majesty is satisfied that a state of emergency exists, it is not for the court to inquire as to whether or not he should have been satisfied.”
However, it must be noted that the term “sole judge” stated by the Lord President is not intended to impose sole discretion on the YDPA as there is the mention of the word “Government” which impliedly means that the YDPA must act on advice of the Prime Minister[iv].
Impacts of an Emergency
A critical significance of a declaration of emergency is firstly, the constitution is suspended as a substantial part of it can be overridden by Emergency law[v]. This is also clearly stated under Article 150(6) of the Federal Constitution and would continue to have effect unless it is ceased by the King or Parliament, or the state of Emergency has been lifted due to the cessation of the proclamation. Even though this may be the case, any ordinance enacted shall not permanently alter the Federal Constitution as stated under Article 150 (7).
Another important feature of an Emergency is the YDPA may at any time promulgate ordinances if he is satisfied that circumstances arise which would make it imperative to take immediate action[vi]. This would mean that the YDPA may issue law which cannot be challenged under any court of law. However, legal experts may argue otherwise through the proportionality principle and non-derogation[vii]. The Ordinance is required to be laid before both Houses of Parliament and would cease to have effect if the Ordinance does not pass both Houses. This fact is affirmed by the Federal Court decision in Inspector-General of Police v Lee Kim Hoong[viii] where the Ordinance would only be affirmed if it is passed by both Houses. The extent of power held by the YDPA extends to equate to the power held by Parliament. This imposes great freedom on the Executive to make new laws as they are also excluded from judicial review[ix]. This is also the favoured stand as seen in the Federal Court decision in Stephen Kalong Ningkan v the Government of Malaysia[x] and the High Court in PP v Ooi Kee Saik[xi] These laws will continue to take effect throughout the Proclamation of Emergency but once it ceases to take effect, the ordinance will expire within six months[xii].
Despite the powers to promulgate Ordinances as stipulated above, there are to a certain extent limitation to this power. The Federal and State Governments will continue to be in power. There are also a number of matters which the Parliament shall not touch upon. These matters include any matter of Islamic law or the custom of the Malays or any matter relating to native law or customs in the State of Sabah or Sarawak[xiii]. Therefore, during the period of Emergency, General Elections, State Elections and by – elections will cease to be held, so an Independent Special Committee is established to advise the YDPA.
Ultimately, an Emergency will come to an end in three situations. Firstly, is when the Yang di-Pertuan Agong revokes it, secondly when the Dewan Rakyat and Dewan Negara annuls the Emergency by resolution. Lastly, is when a later proclamation overrides the previous proclamation[xiv].
The Proclamation of Emergency can only be declared in grave situations where the security, or the economic life, or public order is threatened and in this particular situation, an Emergency is declared in the efforts to flatten the curve of Covid-19 cases in Malaysia which has recently increased at a very alarming rate. One thing for sure, the justification for the declaration of Emergency will continue to be debated in the near future.
Written by: Hana Nadia Binti Zhari and Sharifah Nur Asilah Jasmine Binti Syed Mohamed Noor Azmi. For further clarification, please contact us at 03-2171 1484 or at firstname.lastname@example.org.