State Of Emergency For Malaysia. What Does It Entail?

New Malaysia Herald

The King has consented to a declaration of a state of emergency nationwide until 01 August 2021 as a proactive measure to contain the COVID-19 pandemic.

Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah agreed to the decision after a meeting with Prime Minister Tan Sri Muhyiddin Yassin on Monday (Jan 10)

“I urge the people to remain calm and strong to face this state of emergency and the movement control order for our own safety and interest,” said Comptroller of the Royal Household of Istana Negara Datuk Ahmad Fadil Shamsuddin in a statement on Tuesday (Jan 11).

The Palace said this had been discussed and approved by the other Malay rulers.

“Sultan Abdullah views that the spread of Covid-19 in the country is at a critical level and that there is a need to declare an emergency, based on Article 150(1) of the Federal Constitution.

“This decree also takes into account the safety of the people and the country’s interests. It is also based on the current Covid-19 statistics, specifically the logistical constraints in each state,” it said.

It said Putrajaya will be forming an independent task force consisting of government and opposition MPs as well as health experts who will advise the King if the emergency can be ended earlier.

Proclamation Of Emergency

What you need to know.

According to Tai Zee Kin in his FB posting, this means that government has more freedom and flexibility to make policy (Ordinance) on economy, like extend moratorium, subsidy etc without having to go to Parliament | Vaccine distribution made easier

Here are some personal observations on the declaration of State of Emergency.

1. Which statutory provisions allow the Government to proclaim State of Emergency in Malaysia?- Emergency is provided for in the Constitution (Article 150). – Article 150, its subsections, and Article 150 (2A) and 2(B) detailed out the power of the Government under His Majesty YDPA in relation to Emergency.

2. What are the triggering events for Emergency to be proclaimed?- Three situations : Security (Usually external, like war), Economic Life (like the one we are having now) and Public Order like the COVID19 situation we are having now).

3. So the Government announced the MCO earlier under Disease Control Act (342). We were in a situation more stringent than CURFEW back then in the 60s and 70s. Why would the Government need Emergency? Mainly – power to enact/promulgate law outside parliament – Emergency ‘Ordinance’, especially for social control and economic reason.- State of Emergency allows the Executive (Government) to make law under His Majesty’s name (that is as effective as the Parliament statute) known as Ordinance.- These Ordinances can be vetted and voted down by Parliament when the Parliament convenes (Art 150).- But before the Parliament vote it down or before the Government annuls it, these Ordinance stands as law.- imagine, supply ordinances being made to extend moratorium, or allow government to spend above what was provisioned for in Last Year’s budget 2021. They can be carried out via Emergency Supply Ordinance – without having to first seek approval from Parliament.

4. What kind of ordinances the Government can make?- During Emergency, Government can make laws that are in contradiction of the Federal Constitution, except on matters related to the King’s power, Malay and Sabah/Sarawak native customs, Citizenship etc.- They can even create Ordinances pertaining to death penalties.

5. Can we apply Court order to stop the Government from exercising the powers conferred to them by these Ordinances?- No. During Emergency, decisions and actions made by Public Officer under the ordinances cannot be challenged in court through Judicial Review.

6. What are the controls against government’s exercising beyond its power?- Parliament, when in session, can make ordinances like it usually does for statute, it can also annul ordinances made by Government.

7. Can the government suspend parliament under emergency law?- Article 55 (1) and (2) allows the King (Government) to prorogue (delay) the Parliament sitting up to 6 months from its last sitting.

8. Why do you think the Government is considering Emergency? In my personal opinion, this is attributed to few reasons: A) Pandemic and Vaccine. During state of Emergency, the Government can make ordinances easily to facilitate the dealings with the pandemic, ie to maintain public order, decide on how Vaccine jabs are given etc. B) Economic reasons – The Budget 2021 saw a narrow escape as recent as a month ago, and I suppose it was drafted without having in utmost priority the possibility of MCO 2.0. At such, any measure that would go beyond the scope of Budget 2021 would require another round of Parliamentary debate and voting in the form of ‘supplementary budget’. Under Emergency rule, this is dispensed with – as the government can easily enact a ‘Supply Ordinance’ which is as powerful as an Act of Motion on Supply (Budget) passed by the Parliament. C) Political Reason – Stability. With the Parliament prorogued, and Ordinances enacted, the Government buys itself another few months of stability – any challenges against the legitimacy of this government shall not survive due to – no parliament in session to move a vote of no confidence or to vote down supply bill, and Court loses its function to review judicially on law (ordinances) made under Emergency law.

9. Do we need to worry about our livelihood being affected by more restrictive measures and the state of emergency? I doubt so. Earlier CMCO and RMCO clearly showed how reluctant the Government is in curtailing economic activities – lesser road blocks, many retails are still allowed operations, and workers are still allowed to go to work.The Government already had enough power to curtail movement – it did in March 2020, and yesterday 11.1.2021. If the government wanted to further restrict our movement, they could have done so by simply announcing MCO like it does now. Why didn’t the government do that? Because government wants economic activities to carry on, for the survival of our economy. It makes no sense that the Government would further curtail this arrangement – it could have done so if it wanted without emergency, like how it was done in March 2020.

Having said that, i believe the Emergency was meant to provide government with adequate flexibility to deal with the pandemic, economic repercussions from movement restrictions, and political stability – the certainty of not having a General Election before the end of the Emergency period. Fret not. This power is always at the discretion of our King His Majesty YDPA. Tuanku has demonstrated His Majesty’s reluctance in assenting to the emergency proclamation request last year – which means, logically, Tuanku’s royal assent granted yesterday must have been a decision made upon seeing the case breaching an unusually high threshold. Henceforth, in trying times like this, we shall submit and cooperate, as responsible citizens, to the Country, our King, His Majesty’s cabinet and civil servants. For we have so much faith in Tuanku, it is reasonable to nestle in such faith alone for time being. Daulat Tuanku!