Lawyers say declaring an emergency is entirely up to the Agong
(MMO) – Several lawyers polled by Malay Mail have cast doubts over the feasibility of the rumoured so-called “partial emergency” dubbed either a political, economic or health emergency, following speculation yesterday that the government is seeking such powers.
Pointing to the Federal Constitution, the constitutional experts said the country’s supreme document only provides for one type of emergency that would either cover the whole country or any state in its Article 150.
“There is no such term as an economic emergency. It’s either a nationwide emergency or a state-specific emergency,” Bar Council’s constitutional law committee deputy chair Lim Wei Jiet told Malay Mail.
His view was echoed by lawyer Surendra Ananth, who said there is only one type of emergency which is a proclamation by the Yang di-Pertuan Agong under Article 150(1).
Meanwhile, lawyer Syahredzan Johan questioned on Twitter last night over the origin of the term, highlighting that no such concept exists in the Constitution.
“There is no such term as political emergency in the Federal Constitution. An emergency is an emergency and to declare for an emergency there needs to be safety, economic and public security threat.
“There is no mention of political conflict in a state of emergency. There is no political emergency in the Federal Constitution,” he wrote.
Article 150 in the Constitution handles the proclamation of emergency. Article 150(1) states that “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.
Said proclamation must only be done with the advice of the Cabinet or the prime minister.
However, the lawyers also said that the details of such an emergency would be up to the government.
With an emergency proclaimed, the executive branch will have almost absolute authority over the running of the country in a crisis, without check and balance from the other two branches: the legislative and judiciary.
“It is not mandatory to deploy the military. So yes, we can have an emergency without heavy military presence,” said Lim, who is also one of the founders of new party Malaysian United Democratic Alliance (Muda).
Surendra said the authority during this emergency falls entirely to the Agong, if the Parliament is not in session.
“When the Parliament is not sitting, the Yang di-Pertuan Agong can make ordinances on any matter the Parliament can make law on.
“When the Parliament is sitting, it can pass emergency laws on any matter including matters that belong in the state list,” he said.
Such laws and ordinances can be passed even if it is not consistent the Constitution, except on the matters of Islamic law or custom of the Malays; native law or customs of Sabah and Sarawak; citizenship; religion or language,
“Such laws can come into force very soon as it does not need to be assented by the Yang di-Pertuan Agong,” he said, referring to Clause (6) of Article 150(1).
Despite that, the lawyers still cautioned against invoking an emergency, as current laws are already sufficient for Putrajaya to deal with the pandemic.
“We need checks and balances, accountability and transparency to effectively combat Covid-19. It is also detrimental to economy and commerce. Investors will be spooked and they will lose confidence.
“There are many contractual obligations which may be suspended because of an emergency, plunging businesses into uncertainty,” Lim said.
On Twitter, Syahredzan pointed out that Act 342 or Prevention and Control of Infectious Diseases Act 1988 can already be used to limit the public’s movement in light of the Covid-19 outbreak in the country.
“Need to control movement? There is Act 342. Don’t want people to gather? There is Act 342. Want to control borders? There is Act 342.
“Why is there a need to declare a state of emergency?” the political secretary to Iskandar Puteri MP Lim Kit Siang asked on Twitter.
Yesterday, Muhyiddin and several other government leaders attended an audience with Yang di-Pertuan Agong Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah at the latter’s Istana Abdulaziz in Kuantan.
However, no announcement was made following the audience.
Speculation had been rife that the Perikatan Nasional government is seeking to declare a state of emergency as Malaysia struggles to contain the spike in Covid-19 infection that has also hurt the economy.
Reports have so far suggested that Putrajaya is seeking a dubious so-called state of “partial emergency”, also dubbed as “economic, health, or political emergency”.
It is unclear what the emergency powers being sought are at the moment as the breadth and scope under a state of emergency are far ranging.
This comes as the country recorded a new high of Covid-19 deaths at 10 fatalities yesterday, bringing the total to 214.
Malaysia also recorded 710 new Covid-19 cases yesterday, bringing total positive cases to 24,514.