KUALA LUMPUR, Jan 17 — The current federal government’s successful push for a declaration of a nationwide Emergency on Malaysia and the subsequent Ordinance or law created under the Emergency with sweeping powers for the government without the necessary checks and balances is a “dangerous precedent”, ten former presidents of the Malaysian Bar said today.

In a statement today, the former leaders of the legal professional body that represents all lawyers in Peninsular Malaysia voiced their concern over the government’s decision to seek the declaration of an Emergency via a Proclamation by the Yang di-Pertuan Agong.

They argued that the conditions of a “grave emergency” with only the “most extreme” of circumstances — that would be required for such an Emergency declaration — were not present when the Emergency was called.

“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,” they said.

Among other things, they also highlighted the recently-gazetted Emergency Ordinance which had suspended the sitting of Parliament, pointing out that the Federal Constitution actually requires both a proclamation of Emergency and Ordinances made under an Emergency to be tabled in Parliament to be scrutinised, and that the Parliament did continue to function in previous Emergencies in the country.

The statement was signed off by Datuk Param Cumaraswamy, Zainur Zakaria, Datuk Cyrus V. Das, Datuk Mah Weng Kwai, Datuk Kuthubul Zaman, Datuk Yeo Yang Poh, Datuk Ambiga Sreenevasan, Ragunath Kesavan, Christopher Leong and Steven Thiru.

In the statement titled “The Proclamation and Ordinance: Steps too far”, the 10 prominent lawyers noted that the Federal Constitution’s Article 150(1) provides for a Proclamation of Emergency only in situations where a “grave emergency exists”, which is when the “security, economic life or public order” in the country is threatened.

The senior lawyers stressed that a government must never lightly seek a Proclamation of Emergency as it effectively suspends the rule of law and is anti-democratic, as it “throws the country into a legal abyss where all power resides in the executive”.

Under Malaysia’s parliamentary democracy system with a constitutional monarch, the three branches of government are the executive, legislative and judiciary, with separation of powers between the three practised.

Noting the Federal Constitution as being based on a framework of democracy, separation of powers and the rule of law, the 10 lawyers pointed out that this is why there are heavy limits in the Federal Constitution imposed on the use of a Proclamation of Emergency.

“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?” they asked, before going on to answer this by dismissing the need to call for an Emergency.

They pointed out that there were already sufficient measures to bring Covid-19 under control without having to call for an Emergency.

Noting that the recent Proclamation of Emergency relies on the Covid-19 pandemic as the threat to Malaysia’s “security, economic life and public order”, the lawyers said this reason alone is “hardly a legitimate reason for an Emergency”, especially when other existing factors are considered, namely the reach of the Prevention and Control of Infectious Diseases Act 1988, the movement control orders made to contain the Covid-19 disease, and the fact that most businesses continue to function albeit under very challenging conditions.

The former Malaysian Bar presidents said the Emergency (Essential Powers) Ordinance 2021 that was introduced under the Emergency was even “more alarming”, as they voiced concern over how this Emergency Ordinance would effectively shield the executive arm of government from being scrutinised or held accountable by the two other arms of government — Parliament and the courts.

They cited as example how the Ordinance allows the government to have unrestricted power over person and property, such as allowing the forcible takeover of land, building or property, with up to a RM5 million fine or up to 10 years’ jail for refusal to comply, while the amount of compensation to be paid is not decided by the courts and is a final decision that cannot be challenged in court.

They pointed out that the Ordinance also allows the army to be given powers of search, detention and arrest that are equivalent to the powers exercised by the civilian police.

The former Malaysian Bar presidents singled out the suspension of the sitting of Parliament and all state legislative assemblies throughout the Emergency as the “most egregious” or the most glaring provision, arguing that there appears to be “no justifiable reason” for such a provision.

“All it does is that it insulates the executive from accountability,” the lawyers said, adding that the provision to suspend the sitting of Parliament and the state law-making bodies was “unconstitutional”.

Pointing out that the Federal Constitution’s Article 150(3) requires Emergency Proclamations and Emergency Ordinances to be tabled in Parliament, the lawyers said this is to enable Parliament to exercise its constitutional power of scrutinising the government, highlighting that this constitutional provision also states that Parliament may pass resolutions to annul the Proclamation and 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 lawyers said when commenting on the suspension of Parliament during the Emergency.

The lawyers also highlighted one of the Emergency Ordinance’s provisions, which provides that the government cannot be sued or prosecuted in court for any actions, omissions, neglect or default done in carrying out the provisions of the Emergency Ordinance if it had happened “in good faith”.

Citing this provision, the lawyers said the Emergency Ordinance actually seeks to give the government immunity from accountability or scrutiny by the courts over the government’s actions or omissions, arguing that this would not protect Malaysians from abuse of power.

“The ‘good faith’ exception does not, in reality, afford protection against overzealous exercise of power or an abuse of it,” the lawyers said.

“It is axiomatic that no abuse of power by the Executive can ever be insulated from scrutiny by the courts,” they said when arguing that it is self-evident that any abuse of power by the government cannot avoid court scrutiny.

“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 10 former Malaysian Bar presidents appeared to hint at the Emergency Ordinance provisions as being the actual reason why the federal government had sought for Emergency to be declared nationwide, saying: “The Ordinance is therefore a window into the true reason for the Proclamation.”

The Proclamation of Emergency nationwide was gazetted on January 12, and deemed to be in effect from January 11 to August 1.

The Emergency (Essential Powers) Ordinance 2021 was gazetted on January 14, but deemed to have taken effect from January 11 onwards.

In his January 12 speech on the Emergency declaration by the Yang di-Pertuan Agong, Prime Minister Tan Sri Muhyiddin Yassin had said that all elections and Parliament sittings will be suspended, but gave his assurance that the judiciary will continue to function during the Emergency and that the courts will not face any government interference.

Aside from assuring that the civilian government’s administration and public services would continue uninterrupted, Muhyiddin had also said economic activities will continue on during the Emergency according to the various movement control orders and standard operating procedures, while also saying that Malaysia remains committed to good governance and that the Emergency would provide “much needed calm and stability” to enable the country to focus on economic recovery.