CONSTITUTIONALITY OF THE EMERGENCY DECLARATION IN A PANDEMIC
By Yong Kin Ngai
Instagram Username: yongkinngai
University: Universiti Kebangsaan Malaysia (UKM)i
On 11 January 2021, the Yang di-Pertuan Agong (“YDPA”) issued a Proclamation of Emergency that will last until 1 August 2021, as advised by Prime Minister (“PM”) Tan Sri Muhyiddin Yassin. Malaysia is no stranger to emergency declarations, but the 2021 Emergency Proclamation was the first Proclamation of Emergency to be issued due to a pandemic. Unlike the 1969 Emergency Proclamation in which curfews were imposed, Tan Sri Muhyiddin Yassin assured Malaysians that there will be no curfews and the civilian federal and state governments would continue to function. To be specific, the ‘constitutionality’ and ‘necessity’ of an emergency declaration are two different things. An emergency declaration can be constitutional, yet unnecessary in the opinion of the majority of people. On the other hand, ‘constitutionality’ can be analyzed according to the Federal Constitution (hereinafter referred as ‘FC’), but ‘necessity’ can be rather subjective.
Under Article 150(1) of the FC, the YDPA can issue a Proclamation of Emergency if His Majesty is satisfied that a grave emergency exists that threatened the security, or economic life, or public order in the Federation. The Reid Commission observed that a Proclamation of Emergency is necessary when wars or internal disturbance that can cause an immediate threat to the country’s security or economic life might need to be dealt with more promptly. In short, the constitutionality of the 2021 Emergency Proclamation depends on whether its purpose fits into such a description provided by the Commission based on Article 150(1) of the FC. For the record, it seems that courts have always interpreted the word ‘emergency’ broadly.
Existing legal measures to curb COVID-19
The Sri Petaling cluster was one of the largest clusters that contributed to a new wave of COVID-19 cases in March 2020. On 15 March 2020, Malaysia recorded 190 new cases. It was the first time the number of new daily cases stood at 3-digit. Therefore, the Movement Control Order (MCO 1.0) was imposed from 18 March until 3 May 2020.The said Regulation and Order were extended every 2 weeks during the MCO period. Under S.11(1) of the Prevention and Control of Infectious Disease Act 1988 (hereinafter referred as ‘PCID 1988’), if the Minister is satisfied that there exists an outbreak of infectious disease in any area of Malaysia, or the area is affected with an epidemic of any infectious disease, then he can declare such area to be an infected local area with order in the Gazette.
Subsequently, the Conditional MCO (CMCO) period and Recovery MCO (RMCO) have their legal effect with regulations and orders made according to PCID 1988 and the Police Act 1967 too. Instead of imposing CMCO or RCMO throughout the country, the government started to impose different measures for different states from October 2020, according to the COVID-19 situation in the respective state.
Who can declare a state of emergency?
There are two contrasting opinions about whether the YDPA is constitutionally bound by the PM’s advice to issue a Proclamation of Emergency. In Teh Cheng Poh v Public Prosecutor, the Privy Council held that since the YDPA is a constitutional monarch, the words ‘is satisfied that’ in Article 150(1) actually refers to the opinion of members of the Cabinet, and not the personal opinion of His Majesty. This is because the YDPA is bound to act on the Cabinet’s advice at all times according to Article 40(1) FC, except for the appointment of PM, withholding the consent for a request to dissolve Parliament, or the requisition of a meeting of the Conference of Rulers.
On the other hand. in Public Prosecutor v Mohd Amin bin Mohd Razali & Ors, the accused raised a preliminary objection to challenge the validity of the Essential (Security Cases) (Amendment) Regulations 1975. According to him, the Regulations which was validated by the Emergency (Essential Powers) Act 1979 is null and void as the YDPA did not act on the Cabinet’s or a Minister given authority of the Cabinet’s advice. This was because, at that time in 1969, Dewan Rakyat had been dissolved for the General Election. The court held that by referring to Art.150(1), it is evident that the YDPA can issue a proclamation of emergency if His Majesty himself thinks that a grave emergency is occurring. Therefore, since there is no cabinet formed yet at that time right after the elections, the YDPA has a royal prerogative to declare an emergency without the need to follow the Cabinet’s advice. Even assuming that the YDPA must act on the Cabinet’s advice in issuing a Proclamation of Emergency, the previous Cabinet, which is the caretaker government before the elections, can advise the YDPA on emergency matters and national policies. However, it is still up to the YDPA whether he wants to be bound by that advice or not.
It is worth pointing out that Article 40(2) FC not only provides the 3 functions which the YDPA has discretion in performing, but it also provides “and in any other case mentioned in this Constitution”. Therefore, it is likely that Article 150(1) of the FC is that “other case mentioned”. The PM can always advise the YDPA to issue an Emergency Proclamation, but the YDPA is not totally bound by such advice as His Majesty being the final decision-maker can reject with reasonable grounds.
The PM’s first proposal for emergency declaration
When there was a new wave of COVID-19 cases post-Sabah election, the Cabinet opted for an emergency declaration, instead of reimposing the MCO. There were many speculations that the PM’s first proposal for an emergency declaration was to avoid the 2021 Budget from being tabled in Parliament, as he only commanded a razor-thin majority in the Dewan Rakyat. Under Article 43(4) of the FC, if the Prime Minister ceases to command the confidence of the majority members of the Dewan Rakyat, then he shall tender the Cabinet’s resignation, unless the YDPA dissolves Parliament at the PM’s request. By convention, failure in passing an annual national budget signifies that the PM has lost the confidence of the majority members. After consulting with His Majesty’s brother Rulers, the YDPA decided to not declare a state of emergency, citing that the government has the ability under the PM’s leadership to control the pandemic without a Proclamation of Emergency.
Effects of an Emergency Proclamation
Opposition MPs called the 2021 Emergency Proclamation politically motivated as it was to prevent the dissolution of Parliament and a subsequent general election. By the time the Proclamation of Emergency was issued, several UMNO MPs have held press conferences to declare that they no longer have confidence in Tan Sri Muhyiddin Yassin as the PM. If an actual vote of no-confidence was held in the Dewan Rakyat, the PM might be ousted. However, even if this was the case, no other MPs in the Dewan Rakyat seemed to command the confidence of majority members. By any means, Muhyiddin’s government is legitimate, albeit being a minority government in the worst-case scenario.
There is no distinction in the FC between a ‘political emergency’ and a ‘health emergency’ as called by some. As long as the YDPA is satisfied under Art.150(1), a Proclamation of Emergency can be made. Prof. Shad Saleem Faruqi described the effects of gazetting a Proclamation of Emergency as “lifting the floodgates and the federal government’s legislative and executive powers gush forth in exuberance”. According to Article 150(2B) FC, the YDPA can promulgate Ordinances that have the force of law when the two Houses of Parliament are not sitting concurrently when an emergency is declared. In reality, the Dewan Rakyat and Dewan Negara seldom sit concurrently. In Madhavan Nair v Government of Malaysia, the court mentioned that the YDPA as a constitutional monarch is bound by the FC to act at all times on the Cabinet’s advice, even during emergency rule which passes the legislative power from Parliament to His Majesty.
The Federal Constitution is not only the supreme law of Malaysia, it is also a document that safeguards the civil liberties of all Malaysians. According to Article 150(6) FC, subject to clause (6A), no provision of any ordinance promulgated by virtue of this Article, and no provision of an Act of Parliament passed during a Proclamation of Emergency is in force, shall be invalid for its inconsistency with any provision of this Constitution. To put it simply, when an Emergency Ordinance or Act of Parliament (in the case Parliament is allowed to convene during emergency rule) contravenes the fundamental liberties provided in Part II of the FC, no judicial review can be asked for. Strictly speaking, the concept of constitutional supremacy during a state of emergency is almost meaningless.
Parliamentary control over Emergency Proclamation
Before Article 150(2) of the FC was amended, in the case Parliament is not sitting when the Proclamation is made, the YDPA was required to summon Parliament as soon as it may be practical. However, after the amendment, it is constitutionally valid for the YDPA (acting on the Cabinet’s advice) to not summon Parliament at all during emergency rule. Nevertheless, to respect the spirit of separation of powers and parliamentary democracy, unless the country is in a war-like condition or public order is seriously in threat, for example during the 1948 Malayan Emergency and during the 1969 Emergency, otherwise, Parliament should be summoned for sittings. For instance, when an emergency was declared in Sarawak due to a political crisis after the dismissal of the then-Chief Minister Stephen Kalong Ningkan, it only took 3 days for the federal Parliament to be summoned to be in session.
In Teh Cheng Poh’s case, the Privy Council held that the YDPA’s power to promulgate Ordinances will cease when Parliament reconvenes. If Parliament is of the opinion that the YDPA should continue to exercise His Majesty’s power to make written laws equivalent to what he was entitled to do before Parliament reconvened, then the YDPA can do so by virtue of an Act of Parliament delegating His Majesty to do so. When Article 150(2B) of the FC was inserted, the ruling of Teh Cheng Poh still applies, but only in situations when both the Dewan Rakyat and Dewan Negara are sitting concurrently. In reality, parliamentary control over the executive branch in issuing an Emergency Proclamation is weak and inefficient. It is a mere procedural matter as MPs from the ruling party will support the executive’s decision and the Proclamation itself due to party loyalty and the whip system.
Judiciary’s role on Emergency Proclamation
In Stephen Kalong Ningkan v Government of Malaysia, the petitioner challenged the Proclamation of Emergency made in Sarawak. The court opined that the YDPA is the sole judge, and once His Majesty is satisfied that a state of emergency exists, then no courts can inquire as to whether or not His Majesty should have been satisfied. This decision was further strengthened when Article 150(8) FC was added by a constitutional amendment in 1981. Art.150(8) serves the purpose to oust the judiciary’s power to judicial review an emergency proclamation by stating “(a) the satisfaction of the YDPA…shall be final and cannot be challenged in any court on any ground”. Besides, in Dato’ Seri Anwar Ibrahim v Public Prosecutor, the court observed that Art.150(8) can be argued as ‘closing the doors of the court’, however, the appropriate forum for discussion is Parliament and not the courts. Therefore, the issue of constitutionality of the 2021 Emergency Proclamation is merely an academic one. It must be emphasized again that even if the Proclamation’s constitutionality or validity is justiciable, courts have always inclined to give the word ‘emergency’ a broad interpretation. In Stephen Kalong Ningkan’s case, the Privy Council explained that ‘emergency’ in Article 150(1) is not limited to unlawful use or threat of force, but the word’s ordinary meaning can cover a very wide range of situations and occurrences, such as wars, famines, earthquakes, floods, epidemics and the collapse of civil government.
Malaysia is not the first country to declare an emergency amid the outbreak of COVID-19. However, the situation of emergency rule in Malaysia ought not to be compared to other countries. This is because, unlike Malaysia, some countries do not have sufficient laws to impose a lockdown without an emergency declaration. It is suffice to say that once a Proclamation of Emergency is issued, there are very few constraints imposed by the FC against the exercise of executive and legislative powers. Although the Proclamation itself and emergency laws (unless one of the provisions contravenes the 6 matters) are basically non-justiciable, it might be inaccurate to say that the executive branch and Parliament should be allowed to exercise their powers freely during emergency rule. This is because, in the past 60 years, Malaysia (including Malaya before 1963) has previously experienced not one, but 3 national emergencies. All in all, the 2021 Emergency Proclamation was constitutional. As for its necessity, it is immaterial to debate at this point. As Justice Thurgood Marshall once said: “History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure”, Malaysians can only hope that the government will facilitate the benefits of an emergency declaration to combat COVID-19 and balance between public health and economic life.
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