Can the government declare an emergency and when?
Will the Agong agree to the declaration of an emergency? Under what circumstances can an emergency be declared? And can this declaration be challenged? Well, read on. Pakatan Harapan may have been trapped in a corner.
NO HOLDS BARRED
Raja Petra Kamarudin
I have actually been writing about this matter over the last week or so, plus talked about it in my videos.
Anyway, you can read Articles 149 and 150 of the Federal Constitution of Malaysia below to see what it says. And you do not need to be a lawyer of constitutional expert to understand what it says. All you need is a good comprehension of the English language, my mother-tongue (my father-tongue is Malay).
No need to sieve through the entire 1,249 words of Articles 149 and 150 of the Constitution. Just focus on these parts:
Article 149(1) If an act of parliament recites that action has been taken or threatened by any substantial body of persons, whether inside or outside the Federation.
In this particular case Pakatan Harapan is a “substantial body of persons”, hence this Article applies. Pakatan Harapan has threatened to sabotage the economy by blocking Budget 2021, which will cause hardship to 32 million Malaysians, hence this Article applies, again.
Article 149(1)(b) To excite disaffection against the Yang di-Pertuan Agong.
Over the last six months, Pakatan Harapan has been instigating (menghasut) the people to hate Seri Paduka Baginda Yang di-Pertuan Agong. They allege the Agong created an illegal Perikatan Nasional government, swore in a backdoor Prime Minister, has stolen the mandate of the rakyat, is behind a palace-backed coup, etc.
So, this Article applies.
Article 150(1) 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.
With the Covid-19 coronavirus pandemic crisis and the plot to sabotage Budget 2021, “a grave emergency exists whereby the economic life of the people in the Federation is being threatened.”
So, this Article also applies.
Article 150(2) A Proclamation of Emergency under Clause (1) may be issued before the actual occurrence of the event which threatens the economic life, if the Yang di-Pertuan Agong is satisfied that there is imminent danger of the occurrence of such event.
This means the actual threat does not need to happen yet. Even if there is a possibility it may happen that is good enough to declare an emergency.
Article 150(8)(a) 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.
The Agong’s decision is final and cannot be challenged.
Article 150(8)(b) No court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground.
In this matter, the Agong is above the Federal Court.
So, there you have it. Now let’s see what Pakatan Harapan is going to do about this. Oh, and by the way, only the Agong has the power to reject the Prime Minister’s request to declare an emergency. Even the Federal Court or Parliament cannot do that.
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PART XI – SPECIAL POWERS AGAINST SUBVERSION, ORGANISED VIOLENCE, AND ACTS AND CRIMES PREJUDICIAL TO THE PUBLIC AND EMERGENCY POWERS
Article number: 149
● (1) If an act of parliament recites that action has been taken or threatened by any substantial body of persons, whether inside or outside the Federation –
❍ (a) to cause, or to cause a substantial number of citizens to fear, organised violence against persons or property; or
❍ (b) to excite disaffection against the Yang di-Pertuan Agong or any Government in the Federation; or
❍ (c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence; or
❍ (d) to procure the alteration, otherwise than by lawful means, of anything by law established; or
❍ (e) which is prejudicial to the maintenance or the functioning of any supply or service to the public or any class of the public in the Federation or any part thereof; or
❍ (f) which is prejudicial to public order in, or the security of, the Federation or any part thereof, any provision of that law designed to stop or prevent that action is valid notwithstanding that it is inconsistent with any of the provisions of Article 5, 9, 10 or 13, or would apart from this Article be outside the legislative power of Parliament; and Article 79 shall not apply to a Bill for such an Act or any amendment to such a Bill.
● (2) A law containing such a recital as is mentioned in Clause (1) shall, if not sooner repealed, cease to have effect if resolutions are passed by both Houses of Parliament annulling such law, but without prejudice to anything previously done by virtue thereof or to the power of Parliament to make a new law under this Article.
Article number: 150
● (1) 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.
● (2) A Proclamation of Emergency under Clause (1) may be issued before the actual occurrence of the event which threatens the security, or the economic life, or public order in the Federation or any part thereof if the Yang di-Pertuan Agong is satisfied that there is imminent danger of the occurrence of such event.
● (2A) The power conferred on the Yang di-Pertuan Agong by this Article shall include the power to issue different Proclamations on different grounds or in different circumstances, whether or not there is a Proclamation or Proclamations already issued by the Yang di-Pertuan Agong under Clause (1) and such Proclamation or Proclamations are in operation.
● (2B) If at any time while a Proclamation of Emergency is in operation, except when both Houses of Parliament are sitting concurrently, the Yang di-Pertuan Agong is satisfied that certain circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as circumstances appear to him to require.
● (2C) An ordinance promulgated under Clause (2B) shall have the same force and effect as an Act of Parliament, and shall continue in full force and effect as if it is an Act of Parliament until it is revoked or annulled under Clause (3) or until it lapses under Clause (7); and the power of the Yang di-Pertuan Agong to promulgate ordinances under Clause (2B) may be exercised 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.
● (3) A Proclamation of Emergency and any ordinance promulgated under Clause (2B) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance, but without prejudice to anything previously done by virtue thereof or to the power of the Yang di-Pertuan Agong to issue a new Proclamation under Clause (1) or promulgate any ordinance under Clause (2B).
● (4) While a Proclamation of Emergency is in force the executive authority of the Federation shall, notwithstanding anything in this Constitution, extent 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 thereof.
● (5) Subject to Clause (6A), while a Proclamation of Emergency is in force, Parliament may, notwithstanding anything in this Constitution make laws with respect to any matter, if it appears to Parliament that the law is required by reason of the emergency; and Article 79 shall not apply to a Bill for such a law or an amendment to such a Bill, nor shall any provision of this Constitution or of any written law which requires any consent or concurrence to the passing of a law or any consultation with respect thereto, or which restricts the coming into force of a law after it is passed or the presentation of a Bill to the Yang di-Pertuan Agong for his assent.
● (6) Subject to Clause (6A), no provision of any ordinance promulgated under this Article, and no provision of any Act of Parliament which is passed while a Proclamation of Emergency is in force and which declares that the law appears to Parliament to be required by reason of the emergency, shall be invalid on the ground of inconsistency with any provision of this Constitution.
● (6A) Clause (5) shall not extend the powers of Parliament with respect to any matter of Islamic law or the custom of the Malays, or with respect to any matter of native law or custom in the State of Sabah or Sarawak; nor shall Clause (6) validate any provision inconsistent with the provisions of this Constitution relating to any such matter or relating to religion, citizenship, or language.
● (7) At the expiration of a period of six months beginning with the date on which a Proclamation of Emergency ceases to be in force, any ordinance promulgated in pursuance of the Proclamation and, to the extent that it could not have been validly made but for this Article any law made while the Proclamation was in force, shall cease to have effect, except as to things done or omitted to be done before the expiration of that period.
● (8) Notwithstanding anything in this Constitution-
❍ (a) 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
❍ (b) no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of-
■ (i) a Proclamation under Clauses (1) or of a declaration made in such Proclamation to the effect stated in Clause (1);
■ (ii) the continued operation of such Proclamation;
■ (iii) any ordinance promulgated under Clause (2B); or
■ (iv) the continuation in force of any such ordinance.
● (9) For the purpose of this Article 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.
