JANUARY 17 — Article 150(1) of the Federal Constitution states:-
“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.”
Therefore, the Yang di-Pertuan Agong (YDPA) must be advised by the Cabinet and be satisfied that a grave emergency exists threatening the security, the economic life or public order of Malaysia before issuing a proclamation of emergency.
The first paragraph of the preamble to the Emergency (Essential Powers) Ordinance 2021 states:-
“WHEREAS by reason of the existence of a grave emergency threatening the security, economic life and public order of the Federation arising from the epidemic of an infectious disease, namely Coronavirus Disease 2019 (COVID-19), a Proclamation of Emergency has been issued by the Yang di-Pertuan Agong under Article 150 of the Federal Constitution on this eleventh day of January, two thousand twenty one:”
It would appear that the YDPA had been advised by the Cabinet, and the YDPA is satisfied, to issue a Proclamation of Emergency by reason of the existence of a grave emergency arising from namely Coronovirus Disease 2019 (COVID-19).
Article 150(2B) of the Federal Constitution states:-
“(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.”
Therefore, the YDPA must be advised by the Cabinet and be satisfied that certain circumstances exist which render it necessary for the YDPA to take immediate action, before requiring the YDPA to take that immediate action of promulgating ordinances.
The second paragraph of the preamble to the Emergency (Essential Powers) Ordinance 2021 states:-
“AND WHEREAS the Yang di-Pertuan is satisfied that immediate action is required to guarantee and preserve the security, economic life and public order:”
Unfortunately, it appears that the YDPA has not been advised by the Cabinet as to what certain circumstances exist which render it necessary for the YDPA to take the immediate action of promulgating this Emergency (Essential Powers) Ordinance 2021.
This is because the second paragraph to the preamble, instead of stating what circumstances exist which render it necessary for the YDPA to take the immediate action, it merely states immediate action is required.
The significance of this will come to light in the foregoing paragraphs.
To get a better understanding, let us look at the emergency ordinance promulgated in 1969. (Ordinance No. 1 of 1969, Emergency (Essential Powers) Ordinance, 15 May 1969.)
The preamble to the 1969 Ordinance states:-
“An Ordinance promulgated by the Yang di-Pertuan Agong under Article 150 (2) of the Federal Constitution.
WHEREAS by reason of the existence of a grave emergency threatening the security of Malaysia, a Proclamation of Emergency has been issued by the Yang di-Pertuan Agong under Article 150 of the Constitution;
AND WHEREAS Parliament was dissolved on the Twentieth day of March, 1969, and elections to the new Dewan Ra’ayat have not been completed;
AND WHEREAS the Yang di-Pertuan Agong is satisfied that immediate action is required for securing public safety, the defence of Malaysia, the maintenance of public order and of supplies and services essential to the life of the community;
IT IS HEREBY ENACTED by the Duli Yang Maha Mulia Seri Paduka Baginda Yang di-Pertuan Agong pursuant to Clause (2) of Article 150 of the Constitution as follows:”
Prior to 1983 before any amendment, the old Article 150(2) of the Federal Constitution read:-
“(2) If a Proclamation of Emergency is issued when Parliament is not sitting, the Yang di-Pertuan Agong shall summon Parliament as soon as may be practicable, and may, until both Houses of Parliament are sitting, promulgate ordinances having the force of law, if satisfied that immediate action is required.”.
As can be seen, when the 1969 Emergency Ordinance was promulgated, the YDPA had to be satisfied that immediate action is required. Hence the fourth paragraph to the preamble of the said Ordinance stating that the YDPA is satisfied that immediate action is required.
The current words of “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” had been expressly and specifically added by Parliament through the Constitutional (Amendment) Act 1984 [Act A584], paragraph 3(h), in force from 16-12-1983.
Therefore, it was incumbent on the Cabinet to advise the YDPA ,and for the YDPA to be satisfied, that immediate action was required in promulgating ordinances as per the old Article 150(2) of the Federal Constitution, under which the 1969 Emergency Ordinance was promulgated.
However, as per the current Article 150(2B) under which the recent 2021 Emergency Ordinance was promulgated, it is incumbent on the Cabinet to advise the YDPA, and for the YDPA to be satisfied, that certain circumstances exist which render it necessary for the YDPA to take the immediate action of promulgating this Emergency (Essential Powers) Ordinance 2021.
As mentioned earlier, and it is worth repeating here, the insertion of the words ‘that certain circumstances exist which render it necessary for him to take immediate action’ express the clear and unambiguous intention of the Parliament. It cannot be simply overlooked.
It is humbly submitted that by the Cabinet merely informing the YDPA that immediate action is required ,clearly the Cabinet has not advised the YDPA as to what certain circumstances exist which render it necessary for the YDPA to take the immediate action of promulgating this Emergency (Essential Powers) Ordinance 2021.
If the Cabinet has not advised the YDPA as to what certain circumstances exist which render it necessary for the YDPA to take the immediate action of promulgating this Emergency (Essential Powers) Ordinance 2021, would not this omission renders the entire process of promulgation unlawful?
This is an important question because it would seem that the Cabinet had merely informed the YDPA that immediate action is required (going back to the previous Article 150(2)), but has failed to advise as to what certain circumstances exist which render it necessary for the YDPA to take the immediate action of promulgating (which is required under the current Article 150(2B).
This, in my humble opinion, is fatal as it goes to the root reason for the satisfaction of the YDPA in the promulgation itself.
Article150(8)(a) of the Federal Constitution states that the satisfaction of the Yang di-Pertuan Agong mentioned in Clause (1) [the proclamation of emergency] and Clause (2B)[ the promulgation of ordinance] shall be final and conclusive and shall not be challenged or called in question in any court on any ground.
Further, Article 150(8)(b)(iii) of the Federal Constitution states that no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of any ordinance promulgated under Clause (2B).
However, it can be argued, in the humblest of opinion, that whilst the satisfaction of the YDPA in promulgation and ordinance so promulgated by itself cannot be subject to the scrutiny of the courts, the process of the promulgation which starts with the advice of the Cabinet, or the lack thereof, must necessarily be subject to the Courts review. The Cabinet’s actions, or omissions, are always subject to the review of the courts.
I stand corrected.
*Puthan Perumal is an advocate and solicitor.
**This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.
