7/21/2019 Emergency Powers

http://slidepdf.com/reader/full/emergency-powers 1/7

1

There are seven issue was arose in this case. The first issue is whether who has

a power to pass the bill during the Emergency? May the Caretaker pass the Bill during

the Emergency? The second issue is whether Amendment procedure is not required

during the Emergency? The third issue is whether PM may invoke Article 66(4A) tobypass the King after 30 days. The forth issue is about revocation of Emergency. The

Fifth issue is about Duration of Emergency law. The last issue is whether it can be

review in the Court?

Emergency Powers

Under Article 150(1) the Emergency refers to threats to the security, economic

life or public order of the Federation or any part thereof. There need not be actual

violence or breach of peace, threat or imminent danger are enough. A proclamation of

emergency may be issued even before the actual occurrence of the threat. More thanone Proclamation may be issued: Article 150(2A).

 An emergency may arise in many ways. The most obvious examples are war and

such serious internal disturbances as constitute an immediate threat to the life of the

nation. But the history and continued existence of the present emergency show that

organized attempts to subvert constitutional government by violence or other unlawful

means may have to be met at an early stage by the use of emergency powers if they

are to be prevented from developing into serious and immediate threats to the safety of

the State.

We must first take note of the existing emergency1. We hope that it may have

come to an end before the new Constitution comes into force but we must make our

recommendations on the footing that it is then still in existence. We do not regard the

existing emergency legislation as wholly satisfactory and we shall recommend specific

provisions with regard to preventive detention. But any attempt to remodel existing

legislation during the emergency might create great difficulties. We therefore

recommend [Art. 153(2)] that emergency legislation existing when the new Constitution

comes into force should be continued in force for one year with power to amend or

repeal any part of it. If after one year it is still necessary to keep any part of the

legislation in force that should only be done by resolution of both Houses of Parliament.If at any time it is declared by Proclamation that the emergency has ended all

emergency legislation should cease to have effect in so far as it authorizes infringement

of fundamental rights or of State rights.

1 Federal Constitution of Malaysia- A Commentary

7/21/2019 Emergency Powers

http://slidepdf.com/reader/full/emergency-powers 2/7

2

Article 150 of Federal Constitution2 

(1) If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby thesecurity, or the economic life, or public order in the Federation or any part thereof isthreatened, he may issue a Proclamation of Emergency making therein a declaration to

that effect.(2) A Proclamation of Emergency under Clause (1) may be issued before the actualoccurrence of the event which threatens the security, or the economic life, or publicorder in the Federation or any part thereof if the Yang di-Pertuan Agong is satisfied thatthere is imminent danger of the occurrence of such event.(2A) The power conferred on the Yang di-Pertuan Agong by this Article shall include thepower to issue different Proclamations on different grounds or in differentcircumstances,whether or not there is a Proclamation or Proclamations already issued by the Yang di-Pertuan Agong under Clause (1) and such Proclamation or Proclamations are inoperation.

(2B) If at any time while a Proclamation of Emergency is in operation, except when bothHouses of Parliament are sitting concurrently, the Yang di-Pertuan Agong is satisfiedthat certain circumstances exist which render it necessary for him to take immediateaction, he may promulgate such ordinances as circumstances appear to him to require.(2C) An ordinance promulgated under Clause (2B) shall have the same force and effectas an Act of Parliament, and shall continue in full force and effect as if it is an Act ofParliament until it is revoked or annulled under Clause (3) or until it lapses under Clause(7); and the power of the Yang di-Pertuan Agong to promulgate ordinances underClause (2B) may be exercised in relation to any matter with respect to which Parliamenthas power to make laws regardless of the legislative or other procedures required to befollowed, or the proportion of the total votes required to be had, in either House ofParliament.(3) 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 tohave effect if resolutions are passed by both Houses annulling such Proclamation orordinance, but without prejudice to anything previously done by virtue thereof or to thepower of the Yang di-Pertuan Agong to issue a new Proclamation under Clause (1) orpromulgate any ordinance under Clause (2B).(4) While a Proclamation of Emergency is in force the executive authority of theFederation shall, notwithstanding anything in this Constitution, extent to any matterwithin the legislative authority of a State and to the giving of directions to theGovernment of a State or to any officer or authority thereof.(5) Subject to Clause (6A), while a Proclamation of Emergency is in force, Parliamentmay, not-withstanding anything in this Constitution make laws with respect to anymatter,if it appears to Parliament that the law is required by reason of the emergency; and

 Article 79 shall not apply to a Bill for such a law or an amendment to such a Bill, norshallany provision of this Constitution or of any written law which requires any consent or

2 Federal Constitution

7/21/2019 Emergency Powers

http://slidepdf.com/reader/full/emergency-powers 3/7

3

concurrence to the passing of a law or any consultation with respect thereto, or whichrestricts the coming into force of a law after it is passed or the presentation of a Bill tothe Yang di-Pertuan Agong for his assent.(6) Subject to Clause (6A), no provision of any ordinance promulgated under this Article,and no provision of any Act of Parliament which is passed while a Proclamation of

Emergency is in force and which declares that the law appears to Parliament to berequired by reason of the emergency, shall be invalid on the ground of inconsistencywith any provision of this Constitution.(6A) Clause (5) shall not extend the powers of Parliament with respect to any matter ofIslamic law or the custom of the Malays, or with respect to any matter of native law orcustom in the State of Sabah or Sarawak; nor shall Clause (6) validate any provisioninconsistent with the provisions of this Constitution relating to any such matter orrelatingto religion, citizenship, or language.(7) At the expiration of a period of six months beginning with the date on which aProclamation of Emergency ceases to be in force, any ordinance promulgated in

pursuance of the Proclamation and, to the extent that it could not have been validlymade but for this Article any law made while the Proclamation was in force, shall ceaseto have effect, except as to things done or omitted to be done before the expiration ofthat period.(8) Notwithstanding anything in this Constitution-(a) the satisfaction of the Yang di-Pertuan Agong mentioned in Clause (1) and Clause(2B) shall be final and conclusive and shall not be challenged or called inquestion in any court on any ground; and(b) no court shall have jurisdiction to entertain or determine any application,question orproceeding, in whatever form, on any ground, regarding the validity of-(i) a Proclamation under Clauses (1) or of a declaration made in suchProclamation to the effect stated in Clause (1);(ii) the continued operation of such Proclamation;(iii) any ordinance promulgated under Clause (2B); or(iv) the continuation in force of any such ordinance.(9) For the purpose of this Article the Houses of Parliament shall be regarded as sittingonly if the members of each House are respectively assembled together and carryingoutthe business of the House.

The first issue is whether who has a power to pass the bill during theEmergency? May the Caretaker pass the Bill during the Emergency? Article 150(2B)

stated that if at any time while a Proclamation of Emergency is in operation, exceptwhen both Houses of Parliament are sitting concurrently, the Yang di-Pertuan Agong issatisfied that certain circumstances exist which render it necessary for him to takeimmediate action, he may promulgate such ordinances as circumstances appear to himto require.

 At this stage Prime Minister cannot passed a Bill during the emergency or calledthe emergency because it is contradict with the article 150(2B) of Federal Constitution.

7/21/2019 Emergency Powers

http://slidepdf.com/reader/full/emergency-powers 4/7

4

The case of Public Prosecutors v Mohd Amin Mohd Razali [2000] 4MLJ679  lendsfurther credence to this view. According to the High Court, if Parliament is sitting and theCabinet is in existence, the YDPA exercises his powers on advice. But if during adissolution there is no Cabinet in existence to advise the Monarch, then the King isempowered to issue aProclamation of Emergency on his own. Even if a caretaker

government is in place, the caretaker governments advice on national emergencies isnot binding on the Yang di-Pertuan Agong.

The second issue is whether Amendment procedure is not required during theEmergency? If the two Houses of Parliament are not sitting concurrently whenemergency is declared, the Yang di-Pertuan Agong may act under Article 150(2B) topromulgate Ordinances having the force of law. An emergency ordinance is an extra-parliamentary measure and requires no procedures and no votes in Parliament. Itrepresents the only instance under the Constitution when the executive acquiresprimary and parallel legislative functions. Under Article 150(3), relating to annulled byParliament, the resolution of one House is not sufficient: PP v Dato   Seri Anwar

Ibrahim (No.2) [1999] 2 MLJ 249.In Stephen Kalong Ningkan v Government of Malaysia  it has been held by theFederal Court that under Article 150 of the Federal Constitution, the Federal Parliamenthas power to amend the Federal Constitution as well as that of a State. The non-obstante clause in the Article overrides the provision relating to concurrence andconsent. The decision of the Federal Court was affirmed by the Privy Council on appealin Stephen Kalong Ningkan v Government of Malaysia.

The third issue is whether PM may invoke Article 66(4A) to bypass the King after30 days? Article 150(1) of Federal Constitution stated If the Yang di-Pertuan Agong issatisfied that a grave emergency exists whereby the security, or the economic life, orpublic order in the Federation or any part thereof is threatened, he may issue aProclamation of Emergency making therein a declaration to that effect. The language of

 Article 150(1) seems that the proclamation of an emergency is a discretionary power ofthe Yang di-Pertuan Agong under Article 40(2) which stated that the Yang di-Pertuan

 Agong may act in his discretion in the performance of three enumerated functions plusin any othe case mentioned in this Constitution .

The case of Public Prosecutors v Mohd Amin Mohd Razali [2000] 4MLJ679 lends further credence to this view. According to the High Court, if Parliament is sittingand the Cabinet is in existence, the YDPA exercises his powers on advice. But if duringa dissolution there is no Cabinet in existence to advise the Monarch, then the King isempowered to issue aProclamation of Emergency on his own. Even if a caretakergovernment is in place, the caretaker governments advice on national emergencies isnot binding on the Yang di-Pertuan Agong.

7/21/2019 Emergency Powers

http://slidepdf.com/reader/full/emergency-powers 5/7

5

The forth issue is about revocation of Emergency. The Constitution in Article150(3) requires the Yand di-Pertuan Agong to lay the Proclamation of Emergencybefore both Houses of Parliament. The Houses are given the power to pass resolutionsto annul a proclamation. This underlines the constitutional scheme of parliamentarycontrol over the executive even in times of emergency. However, the control is

ineffective because the executive can enforce its will on Parliament by issuing a freshproclamation. In order to delay parliamentary scrutiny, the Yang di-Pertuan agong canprorogue or dissolve Parliament under Article 55(2) to enable the government to rule thecountry by executive fiat. For all practical purposes a proclamation of emergency by theYang di-Pertuan Agong is not subject to adequate control by Parliament.

The Fifth issue is about Duration of Emergency law. Article 150(3) required that a

Proclamation would cease two month after it issued unless approved by a resolution of

each House. This time limit was removed by the Constitution (Amendment) Act 1960

(No.10/60). Today the position is that a Proclamation has no fixed duration. Under the

Constitution there are only two ways in which a proclamation of Emergency can come toan end. First, if the Yang di-Pertuan Agong revokes it and second, if the two Houses

annul it by resolution. The Privy Council in Teh Cheng Poh v PP [1979] 1 MLJ 50  

added a third ground a later proclamation impliedly repeals a previous proclamation.

This case can be interpreted in one of two ways. First, that a later, national emergency

repeals a former emergency in that state. This means that 1969 national emergency

repeals brought the 1964 Proclamation to an end and caused all emergency laws under

the 1964 emergency lapse. The second interpretation of this case is that the 1977

Proclamation has impliedly repealed all three prior Proclamations of 1969, 1966 and

1964. Whatever interpretation one may give to Teh Cheng Poh, its view is now set

aside by addition of a Clause 150(2A) to the Constitution which states that more than

one proclamation of emergency can exist concurrently. With effect from 15 May 1981,

 Act A514 permits multiple proclamations.

The last issue is whether it can be review in the Court? In the context of an

emergency law, it is clear that Article 150(6A) imposes fetters on emergency powers.

Six sensitive issues cannot be trifled with under emergency powers. If parliament or the

King frame unconstitutional legislation relating to these six issues, judicial review is

likely. If an Ordinance is promulgated while the two Houses are in session concurrently,

courts may interfere. If a preventive detention law violates the requirements of Article

151, judicial review may lie. In case Teh Cheng Poh v PP [1979] 1 MLJ 50 , the Yang

di-Pertuan Agong had under Article 150, validly promulgated an Ordinance in 1969. As

a comment on this case, it must be noted that what the Privy Council condemned was

the making of law by the executive on its own authority. If after Parliament had come

back to session, Parliament had delegated Regulation making power to the King, that

would have been perfectly valid.

7/21/2019 Emergency Powers

http://slidepdf.com/reader/full/emergency-powers 6/7

6

References:

1. Document of destiny, Prof. Datuk Shad Saleem Faruqi, The Star 2008.

2. Federal Constitution of Malaysia, A Commentary, K.V. Padmanabha Rau, Malaysian

Current Law Journal Sdn. Bhd, 1986

3. Federal Constitution.

7/21/2019 Emergency Powers

http://slidepdf.com/reader/full/emergency-powers 7/7

7

Question 3:

 Assume that this the year 2013. The Federal Parliament that was elected on March 8,

2008 was convened on April 28,2008. It is due to end its 5-year term on April 27,2013.

Between April 1, 2013 and April 3,2013 the Government of YAB Dato Seri Najib TunRazak, acting under Article 150, successfully passes a Bill through both Houses called

the Emergency (Amendment to the Federal Constitution) Act 2013[Act 420]. The Act is

passed by a simple majority in the Dewan Rakyat and a special 2/3 majority in the

Dewan Negara. Among other things in the Act states that the Constitution is amended in

 Article 55(3) to provide that Parliament unless sooner dissolved shall continue for

fifteen years from the date of its first meeting and shall then stand dissolved .

On the advice of the Conference of Rulers, the Yang di-Pertuan Agong refuses to sign

the Bill into law. The PM then invokes Article 66(4A) to bypass the King after 30 days.

The Bill/Act is then printed in Warta Kerajaan.

On April 28, 2013 the Dewan Rakyat continues to sit and the PM and the Cabinet

continue to perform their functions.

The Leader of the Opposition is deeply aggrieved at the turn of events. He seeks your

legal Advice. Advice him on the Constitutional issues involved.