Article 150(1) of the Federal Constitution provides for a proclamation of emergency only in situations where a grave emergency exists, namely where the security, economic life, or public order in the country is threatened.
It must never be sought lightly because it is anti-democratic and effectively suspends the rule of law. Such a proclamation throws the country into a legal abyss where all power resides in the executive.
Hence the heavy strictures for its use as prescribed in our Federal Constitution, which is founded on a framework of democracy, separation of powers and the rule of law.
Thus, it is incumbent on any responsible government to avoid seeking such a proclamation save in the most extreme of circumstances. Do these circumstances exist here?
The proclamation of 11 January 2021 expressly relies on the Covid-19 pandemic as the threat to “security, economic life or public order” in the country.
Failing any other ground, this is hardly a legitimate reason for an emergency, particularly in light of the reach of the Prevention and Control of Infectious Diseases Act 1988, the movement control orders made to contain the disease and the fact that most businesses continue to function, albeit under very challenging conditions.
More alarming is the Emergency (Essential Powers) Ordinance 2021 promulgated under the Proclamation.
It gives unrestricted power over person and property. Amongst other things, it allows for the forcible taking of possession of land/building/property by the government with a RM5m fine/10-year jail sentence for a refusal to comply. The assessment of compensation is not by the courts and cannot be challenged in court.
It also allows for the army to be given powers of search, detention and arrest equivalent to that exercised by the civilian police.
The most egregious provision is the suspension of the sitting of Parliament and the legislative assemblies of the States. There appears to be no justifiable reason to do so. All it does is that it insulates the executive from accountability.
The suspension of the sitting of Parliament and the state assemblies is unconstitutional. A proclamation and any ordinances promulgated pursuant to the proclamation must be tabled in Parliament under Article 150(3) of the Federal Constitution. This is for the purposes of Parliament exercising its constitutional power of scrutiny of the government. Both Houses may pass resolutions annulling the proclamation and the ordinances.
There is therefore a guarantee that Parliament will continue to function during the emergency, as it did under the previous emergencies. The ordinance deprives Parliament of this critical constitutional power of check and balance. It denies our democracy.
It is astonishing that a pillar of our Constitution is suspended, whilst other businesses are allowed to operate.
The ordinance further seeks to isolate and immunise the government from accountability and judicial scrutiny of its actions or omissions.
The “good faith” exception does not, in reality, afford protection against overzealous exercise of power or an abuse of it. It is axiomatic that no abuse of power by the executive can ever be insulated from scrutiny by the courts.
It is regrettable that the elements of reasonableness and proportionality are absent in this matter.
Other measures mentioned in the ordinance which are directly related to the pandemic are achievable through other means.
The ordinance is therefore a window into the true reason for the proclamation.
In the final analysis, it is very troubling that the government has set a dangerous precedent for the use of proclamations when the requisite conditions are not met under the Constitution.
This is unacceptable in a country that is built on the bedrock of democratic principles and the rule of law.
It is therefore imperative that both the proclamation of emergency and the ordinance be laid before Parliament, as soon as possible.
This statement is submitted by 10 former presidents of the Malaysian Bar:
- Dato’ Param Cumaraswamy
- Zainur Zakaria
- Dato’ Dr Cyrus V Das
- Datuk Mah Weng Kwai
- Datuk Kuthubul Zaman
- Datuk Yeo Yang Poh
- Datuk Ambiga Sreenevasan
- Ragunath Kesavan
- Christopher Leong
- Steven Thiru
Source: The Malay Mail