KUALA LUMPUR (Oct 23): Amid speculation in the social media that the government will be declaring a state of emergency, constitutional expert Prof Dr Shamrahayu A Aziz has posted a list of 15 questions and answers relating to emergency on his Facebook account.
Question 1: What does emergency mean?
An emergency is a situation concerning the security, economy and public order that cannot be managed under the regular administrative system.
A declaration of an emergency is a proclamation that is made by the Yang di-Pertuan Agong through an announcement that such situation has arisen or is about to happen.
Question 2: What is the impact of a declaration of emergency?
The general effect of a declaration of an emergency is that the Constitution would be suspended and the administration of the nation will be managed by the executive.
The military may also take the lead in matters relating to security if need be, more so when the emergency declared is due to threats against national security.
The Parliament may still be in session, provided that it is not dissolved.
When a proclamation of emergency is in force, the federal executive powers cover all provisions under the state legislative powers with the executive to issue instructions to the state governments or any officer or state authority (Article 150(4)).
Other implications are discussed in the next question.
Question 3: Is the proclamation of an emergency allowed by the Constitution?
Yes. The Constitution authorises the declaration of an emergency through Article 150.
Article 150 is one of three provisions under Part XI of the Federal Constitution, namely the part relating to the Special Powers Against Subversive Acts, Organised Violence and Acts and Crimes Prejudicial to the Public and Emergency Powers.
Part XI allows laws for preventive purposes to be made, including preventive detention for the purpose of dealing with emergencies.
Question 4: What enables the Yang di-Pertuan Agong to make a declaration of emergency?
The Yang di-Pertuan Agong may declare a state of emergency under Article 150(1) of the Federal Constitution if a major emergency to the security or economic life or public order in the federation or any part thereof (has) existed.
Under Article 150(2), the Yang di-Pertuan Agong may also make an emergency proclamation if he is satisfied that the threat of a major emergency to national security, or the economic life or public order is almost true.
Three grounds can be used by the Yang di-Pertuan Agong to make a declaration of emergency, that is if it is a threat to
National security; or
Economic life; or
Question 5: When can an emergency be declared?
An emergency can be declared by the Yang di-Pertuan Agong at any time; it is the same when Parliament is in force, whether it is in session or not, or after the dissolution of Parliament.
The required condition is that the stated element is proven, in that a threat or emergency to security, economic life or public order has happened or is about to arise.
An emergency can be declared on the whole of the federation or any part of the federation under Articles 150(1) and (2).
Question 6: Does the Yang di-Pertuan Agong make a declaration of emergency on his own authority or on the advice of the Prime Minister?
The declaration of emergency is the prerogative of the Yang di-Pertuan Agong.
The prerogative power is the power of the monarchy which has been present, even before the drafting of the Federal Constitution of Malaya (Malaysia).
The power remains in the possession of the monarchical institution. However, a question that arises is whether the prerogative can be exercised at its discretion or on the advice of the Prime Minister?
Article 150(1) states: “If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect”.
The phrase "If the Yang di-Pertuan Agong is satisfied" brings the question of whether the Yang di-Pertuan Agong is satisfied (as sole judge) or on advice.
Several case decisions have made statements on the matter.
The case of Stephen Kalong Ningkan (No.2) (1968) states that the Yang di-Pertuan Agong can declare a state of emergency if he is satisfied.
Lord President Barakbah, in the majority decision, stated "… .In my opinion, the Yang di-Pertuan Agong is the sole judge…"
However, the decision of the Teh Cheng Poh case by the Privy Council in 1979 stated that the action of the Yang di-Pertuan Agong was on the advice of the Cabinet.
This is an agreed legal position.
Lord Diplock stated:
“Although this, like other powers under the Constitution, is conferred nominally upon the Yang di Pertuan Agong by virtue of his office as the Supreme Head of the Federation and is expressed to exercisable if he is satisfied of a particular matter, his functions are those of a constitutional monarch and except on certain matters that do not concern the instant appeal, he does not exercise any of his functions under the Constitution on his own initiative but is required by Article 40 (1) to act in accordance with the advice of the Cabinet.
“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.”
Question 7: Is the Yang di-Pertuan Agong's decision to declare an emergency and make an Ordinance during an emergency justiciable?
The verdict in the case of Stephen Kalong Ningkan (No.2) said Lord President Barakbah clearly stated in the majority decision: “… In my opinion the Yang di-Pertuan Agong is the sole judge and once 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.”
That is, according to Chief Justice Barakbah, the court cannot question the actions of the Yang di-Pertuan Agong.
This majority view was refuted by Ong Hock Thye, a Federal Court Judge, in a similar judgment. Judge Ong Hock Thye expressed a minority view.
“His Majesty is not an autocratic ruler since Article 40(1) of the Federal Constitution provides that “in the exercise of his function under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet… Article 150 specifically provides that the emergency must be one 'whereby the security or economic life of the Federation or any part thereof is threatened ... if those words of limitation are not meaningless verbiage… Article 150 does not confer on the Cabinet an untrammeled discretion to cause an emergency to be declared at their mere whim and fancy.”
That is, the Yang di-Pertuan Agong did not rule autocratically because he acted on advice.
In the exercise of his powers, the court can examine the decisions made by him and also the Cabinet when making an emergency proclamation so that it is limited to the conditions mentioned, namely national security and economic life.
Article 150 does not give irregular discretionary power.
Teh Cheng Poh's decision, as quoted above, also states that the Yang di-Pertuan Agong's action under Article 150 can be reviewed by the court.
After the decision of Teh Cheng Poh case as quoted above, the Federal Constitution was amended by including provisions that clearly do NOT allow the court to review the decision of the Yang di-Pertuan Agong, or any action taken by him regarding the powers, functions and roles under Article 150. This is found in Article 150 (8) which states:
Notwithstanding anything in this Constitution -
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 in question in any court on any ground; and
no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of-
a Proclamation under Clauses (1) or of a declaration made in such Proclamation to the effect stated in Clause (1);
the continued operation of such Proclamation;
any ordinance promulgated under Clause (2B); or
the continuation in force of any such ordinance.
Even so, Clause 8 has not been tested in court.
Question 8: What is the power of the Yang di-Pertuan Agong with regards to the Proclamation of Emergency?
The power of the Yang di-Pertuan Agong under Article 150 with regards to the proclamation of emergency includes the power to make different proclamations for different reasons or different circumstances.
This means that the Yang di-Pertuan Agong can make several emergency proclamations at the same time or at different times. This is found in Article 150(2A).
Question 9: When can the Yang di-Pertuan Agong declare an Emergency?
The Yang di-Pertuan Agong may declare and enforce an emergency while the Parliament is in session, whether during a sitting or not, or when Parliament has been dissolved.
Question 10: What is the role of the Yang di-Pertuan Agong during an Emergency?
If the proclamation is made when both the Houses of Parliament are not sitting concurrently, the Yang di-Pertuan Agong can then promulgate a law, called an Ordinance, if he is satisfied that certain matters or circumstances exist which render it necessary for him to take immediate action. This is mentioned in Article 150(2B).
The meaning of "Houses of Parliament do not sit concurrently" can be understood in clause (9) of Article 150, which provides that "the Houses of Parliament shall be regarded as sitting ONLY if the members of each House are respectively assembled together and carrying out the business of the House.
If the Parliament has started to convene concurrently, the power of the Yang di-Pertuan Agong ceases and the legislative power is returned to the Parliament.
If the Parliament has re-convened concurrently, all legislative powers will return to the Parliament even if an emergency is still in effect.
However, the Parliament can enact an Ordinance to empower the Yang di-Pertuan Agong to make laws (Privy Council decision in the case of Teh Cheng Poh).
Question 11: Can the Parliament make laws during an Emergency?
During an Emergency, the Parliament may make an Ordinance if the Parliament finds that the law is required for emergency purposes and legal procedures may be set aside.
This law is valid even though it is not in line with the Federal Constitution.
In the case of Mr Keok Cheng, Wylie CJ stated, "The true effect of Article 150 is that, subject to certain exceptions set out therein, Parliament has, during an emergency, power to legislate on any subject and to any effect, even if inconsistencies with articles of the Constitution (including the provisions on fundamental liberties) are involved".
Clause (2C) of Article 150 states "… the Parliament has the power to make laws, regardless of the legal procedure or other procedures that are required to be followed, or the proportion of the number of votes required to be obtained in any of the Houses of Parliament".
See also Article 150 (5), where the Parliament may make laws without the consent, or concurrence, or without consultation with any party as required by the law.
The Parliament is not allowed to make an emergency Ordinance only on certain things, ie Islamic Law, Malay customs, or law or customs under the State of Sabah and Sarawak
The Parliament also cannot make Ordinances that are not in line with the provisions of the Constitution in matters relating to religion, citizenship or language. (See 150(6A)).
The Proclamation of Emergency and the Ordinances made by the Yang di-Pertuan Agong during an Emergency shall be tabled before both Houses of Parliament when the two sit concurrently.
Question 12: What is the effect of the Ordinances promulgated by the Yang di-Pertuan Agong during an Emergency?
The Ordinances promulgated by the Yang di-Pertuan Agong can be enforced and is effective as if it were an Act of Parliament.
It can be effective until it is annulled. After Parliament convenes, the Ordinance promulgated by the Yang di-Pertuan Agong shall be tabled before both Houses of Parliament.
The ordinance can be continued if approved and must be stopped if it is not approved by the Parliament.
If the Ordinance is not passed by the Parliament, it does not affect anything that happened before under the enforcement of the Proclamation of Emergency or Ordinance.
In fact, the disapproval by Parliament also does not affect the power of the Yang di-Pertuan Agong to make other Proclamations of Emergency or other Ordinances for such other emergency purposes. (The Yang di-Pertuan Agong may make several proclamations at the same time or at different times, for the same reason or for different reasons).
Question 13: Can the Yang di-Pertuan Agong make a Supply Ordinance (Budget)?
Looking at the power vested in the Yang di-Pertuan Agong, he may, if necessary and he is satisfied, promulgate any ordinance when the two Houses of Parliament are absent or not sitting concurrently, then if he is satisfied and it is necessary to promulgate any expenditure of the country, he may do so.
However, every Ordinance made by the Yang di-Pertuan Agong must be tabled in both Houses of Parliament when the two convenes concurrently. The ordinance can be unraveled by a resolution made by the Parliament. (See Articles 150(2) and (3)).
Question 14: When does an Emergency ends, and who announces the end of an Emergency?
Article 150 does not explicitly mention the issue of annulling the proclamation of emergency — when and by whom.
Article 150(3) indirectly states, “A Proclamation of Emergency and any ordinance promulgated under Clause (2B)...shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation..." This underlined phrase indicates that the annulment of a proclamation and emergency laws made by the Yang di-Pertuan Agong can be made through a resolution approved by both Houses of Parliament.
The case of Teh Cheng Poh states:
"The power to revoke, however, like the power to issue a proclamation of emergency, vests in the Yang di-Pertuan Agong, and the Constitution does not require it to be exercised by any formal instrument. In their Lordships' view, a proclamation of a new emergency declared to be threatening the security of the Federation as a whole must by necessary implication be intended to operate as a revocation of a previous Proclamation, if one is still in force."
Question 15: What will happen to the Ordinances made during the emergency when the emergency ends?
Ordinances made for emergency purposes shall cease to have effect after the expiration of six months after the date of the Proclamation of Emergency ceases to be enforced.
This means that the Ordinance can take effect again until the expiration of six months from the date of emergency ends. (See Article 150(7)).