OCT 28 — I refer to the report “Abdul Hadi: Emergency powers shouldn’t be discounted in Malaysia’s Covid-19 fight”. 

According to PAS president Datuk Seri Abdul Hadi Awang, a state of emergency to handle the ongoing Covid-19 pandemic was not an exception to Malaysia, as many countries had declared one in response to the global health crisis.

Regrettably though, Hadi did not name the many countries that had declared a state of emergency.

Several countries have indeed invoked emergency powers. However, many of these countries employ what have been identified as the “legislative model” whereby emergencies are handled through ordinary legislation - not the constitution - delegating “special and temporary powers to the executive.” (see John Ferejohn and Pasquale Pasquino “The law of the exception: A typology of emergency powers” [2004] 2 IJCL 210)

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It allows close legislative supervision of the exercise of powers by the executive and sets a timely ending to that powers.

The approach can be seen in common law jurisdictions or countries.

Take the example of Australia, in particular the State of Victoria which was the first state to record a Covid-19 case on January 25 - a passenger who travelled from Guangdong, China, to Melbourne on January 19.

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This set off a chain reaction as Australia’s federal, state and territory governments implemented emergency plans to combat the spread of the virus. Travel restrictions were imposed and national coordination arrangements implemented.

On March 16, Victoria declared a ‘state of emergency’ under the state Public Health and Wellbeing Act 2008. Two days later on 18 March - the same day the movement control order (MCO) in Malaysia was first imposed - Australia’s Governor-General declared a ‘human

biosecurity emergency’ across Australia under the federal Biosecurity Act 2015.

These declarations conferred extraordinary powers on the state chief health officer and the federal health minister respectively to issue directions that successively locked down Victoria and Australia’s society and economy to minimise the rate of infection.

The pandemic therefore marks the first time that the emergency powers have been activated under the two legislation - one a state law and the other a federal law.

On August 2, a ‘state of disaster’ was also declared in Victoria under the Emergency Management Act 1986 - another state law - which gives the police greater power to enforce public health directions.

The Australian Constitution does not provide the federal government with a general emergency power like Article 150(1) of the Federal Constitution. Rather, special “emergency powers”

are provided for in ordinary and typically state-level legislation that defines the conditions under which specific kinds of emergencies may be declared.

The legislation comes with built in safeguards. Victoria’ Public Health and Wellbeing Act 2008, for example, provides safeguards against the powers impinging upon individual liberties, including that:

infectious disease management be governed by principles respecting personal rights;

measures which least restrict the rights of a person should be chosen; and

public health orders are subject to appeal, requiring a review by the Chief Health Officer within seven days.

 The Act was also assessed as compatible with the state’s Charter of Human Rights and Responsibilities.

Importantly also, the Act provides that the longest state of emergency enforceable is four weeks, which may be extended for a period of up to six months only.

By comparison, once a proclamation of emergency under Article 150(1) is gazetted, “the floodgates are lifted and legislative and executive powers of the federal government gush forth in exuberance. The executive acquires plenary law-making powers. Parliament’s legislative powers broaden. The federal government acquires power to give directions to the states irrespective of the federal-state division of powers.” [See Shad Saleem Faruqi, Document of Destiny: The Constitution of the Federation of Malaysia (2008) at p 676]

One wonders if Hadi would say the same thing as he does now if the federal government is one that PAS is not part of.

Importantly, unlike under the Victorian legislation, a proclamation of emergency under Article 150(1) has no fixed duration.

If Hadi is amenable to a state of emergency to handle the Covid-19 pandemic, perhaps he should urge the minister for law to amend the Prevention and Control of Infectious Diseases Act 1988 (Act 342) to provide for the health minister to declare a public health emergency, as the case is in Australia, New Zealand and Singapore, among others. These countries share much the same legal traditions as Malaysia.

Or perhaps legislate anew: a Public Health Act to replace Act 342.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.