Courts can review proclamation of emergency, says ex-AG Tommy Thomas

Former Attorney General Tommy Thomas speaking at the ‘Malaysia and Rome Statute’ forum at Universiti Malaya in Kuala Lumpur April 27, 2019. — Picture by Yusof Mat Isa
Former Attorney General Tommy Thomas speaking at the ‘Malaysia and Rome Statute’ forum at Universiti Malaya in Kuala Lumpur April 27, 2019. — Picture by Yusof Mat Isa

KUALA LUMPUR, Oct 24 — Prominent lawyer Tan Sri Tommy Thomas today argued that a proclamation of emergency by the executive can be reviewed by the courts.

The former attorney-general was weighing in on questions that had flooded Malaysian social media amid rumours of a nationwide state of emergency being declared following yesterday’s special Cabinet meeting in Putrajaya and a subsequent meeting between the Yang di-Pertuan Agong and senior government officials at the Pahang palace in Kuantan.

“In my opinion, a Proclamation of Emergency in present circumstances is justiciable before our courts,” he said in a statement countering the view of several politicians who were in favour of an emergency being declared, ostensibly to fight the third wave of Covid-19 and the subsequent economic gloom.

Thomas referred to several landmark lawsuits that he said had set the precedent for the courts to review government decisions. Two of those he named were the child custody and religious conversion case involving Hindu mother M. Indira Gandhi, and a separate land acquisition dispute between Semenyih Jaya Sdn Bhd and the Hulu Langat District Land Office.

He noted that in the Semenyih Jaya vs the Hulu Langat District Land Office ruling, the Federal Court judges said it is the judiciary’s role to act as check-and-balance in a democracy and that no amendment to the Constitution could take away a judge’s powers.

Likewise in Indira’s case against the Perak Islamic authorities over her children’s conversion to Islam, Thomas noted that the top court ruled that aggrieved persons were not barred from taking their dispute to court even if the decision was deemed final.

“Nearly half a century ago, the Teh Cheng Poh case considered the limits of the power of the Executive to declare emergencies.

“A recent foreign example is illustrated of the worldwide trend in common law: the Brexit decision of the Supreme Court in the United Kingdom,” Thomas said.

Earlier today, Federal Territories Minister Tan Sri Annuar Musa had chided government detractors for panning suggestions of an emergency declaration to deal with Covid-19, the economy and political instability.

The Umno secretary-general challenged critics to come up with an alternative solution.

“Pls advise which law to use when Bt Sapi voters want govt to postpone by-election. Which law to use when Sarawakian want their PRN to be postponed for fear of what happened to Sabah, and which law to use when 87 per cent of voters indicated they don’t want GE for fear of Covid-19 outbreak,” Annuar tweeted.

Thomas also claimed “supreme irony” in the rumoured emergency declaration proposal, saying it appeared that the prime minister and his finance minister desired Parliament to be suspended, and for the Budget to be enforceable by executive action.

He said Article 150 itself requires an emergency declaration proposal to be presented and passed in both the Dewan Rakyat and Dewan Negara.

Foregoing this step would be “unconstitutional”, he said.

He added that Article 150(5) provides that while an emergency proclamation is in force, “Parliament may make laws if it appears to Parliament the law is required”.

“Finally, Article 150(9) states that the Houses of Parliament should be regarded as sitting “only if the members of each House are respectively assembled together and carrying out the business of the House,” Thomas said.

He said that the Dewan Rakyat “should sit in the normal way for the important budget session in early November, as scheduled”.

Thomas warned that international credit rating agencies will immediately down-grade the country’s ratings if Malaysia were to enter a state of emergency, saying it would mean that borrowing costs will become more expensive, and perhaps even more difficult.

“The share market will plunge, the ringgit will plummet and business confidence shattered.

“All these predictable consequences would be self-inflicted solely to allow one man to remain as prime minister.

“Hence the ‘economic life’ of Malaysia demands no emergency. Period,” he said.

He urged Prime Minister Tan Sri Muhyiddin Yassin not to consider proclaiming an emergency.

He also said the current health and economic problems attributed to the Covid-19 third wave in the country was due to politicking and said the 222 MPs should take responsibility and come up with a proper solution.

“If that means, the prime minister and his political opponents have to spend next week horse-trading and bargaining for inclusion in a true unity government,  they must undertake that with a spirit of consensus and compromise.

“The people of Malaysia, whom you are supposed to represent, are absolutely disgusted with the present state of affairs.

“The last thing we want is a national emergency caused solely by the ambitions and greed of politicians,” he said.

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.

 

 

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