LETTER | Emergency vests broad legislative powers in the executive

LETTER | Prime Minister Muhyiddin Yassin said the proclamation of emergency is not a military coup. He assured the people that "a civilian government will continue to function." 

"The emergency proclamation by the Yang di-Pertuan Agong is not a military coup and curfew will not be enforced," he added in his televised address this morning.

But the legal reality is that a proclamation of emergency under Article 150(1) of the Federal Constitution drastically changes the sources of law and the law-making mechanisms under the Federal Constitution.

When a proclamation of emergency is in force during which the Dewan Rakyat and Dewan Negara are not sitting concurrently - as is the case is currently - the Yang di-Pertuan Agong (read: the cabinet or effectively the prime minister) may promulgate ordinances having the same force and effect as an act of Parliament if His Majesty is satisfied that certain circumstances exist which render it necessary for him to take immediate action. [Article 50(2B & (2C) Federal Constitution].

Such ordinances may be promulgated in relation to any matter with respect to which Parliament has power to make laws, ‘regardless of the legislative or other procedures required to be followed, or the proportion of the total votes required to be had in either House of Parliament’, and shall continue in force until it is revoked, annulled, or lapsed as a result of the end of the emergency. [Article 150(2C)].

The proclamation also has the effect of extending the executive authority of the federation to any matter within the legislative authority of a state, and to the giving of directions to the government of a state or to any officer or authority. [Article 150(4)].

Significantly, no provision of any ordinance promulgated by the Agong under Article 150 shall be invalid on the ground of inconsistency with any provision of the Federal Constitution. [Article 150(6)].

The only restrictions on this vast expansion of the powers of the executive are as contained in Article 150(6A) that the powers "shall not extend [...] with respect to any matter of Islamic law or the custom of the Malays, or with respect to any matter of native law or customs in the state of Sabah or Sarawak." Nor shall the powers extend to make provisions "inconsistent with the provisions of this constitution relating to any such matter or relating to religion, citizenship, or language."

Today's proclamation of emergency has thus conferred broad legislative powers on the executive which enables it to override numerous constitutional safeguards including fundamental liberties, the federal-state separation of powers, and ordinary protections against the abuse of power, save only for the limited matters stated in Article 150(6A).

Historically, a proclamation of emergency has been used to even temporarily alter the provisions of the Federal Constitution and the state constitution of Sarawak in order to resolve a political impasse in that state to the advantage of the federal government ('The Ningkan Saga: A Chief Minister in the Eye of a Storm' in Constitutional Landmarks in Malaysia: The First 50 Years 1957–2007)

Be that as it may, a proclamation of emergency and emergency powers are an integral part of the Federal Constitution. When the proclamation is in force, the federal executive becomes vested with vast powers. The challenge is how to check and balance these powers - when effectively there is none - so that they are put to legitimate use at appropriate times.

Will the courts be the constitutional guardian to do the check and balance? Some constitutional scholars have suggested two substantive legal principles - non-derogation and proportionality - to check on emergency powers.

Non-derogation alludes to a core of fundamental rights that cannot be infringed or limited, even in an emergency. The proportionality principle requires that any derogation from fundamental rights must not be more severe than strictly required by the exigencies of the situation.

That said, it is heartening that the prime minister has given his undertaking (Akujanji) on the use of the emergency powers.

He will have to walk the talk, though.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.