JANUARY 21 ― Every Act of Parliament has what is called a short title, a long title and preamble. The short title is specified in the Act, generally in the first section of the Act. It is the name by which the Act is known, which includes the year in which it was passed. For example, the short title of the Malaysian Anti-Corruption Commission Act 2009 (Act 694) is specified in section 1(1).
The long title sets out the subject, scope and purpose of the Act. This appears immediately before section 1 of the Act. The long title begins with ‘An Act …’ and explains briefly the Act’s content. For example, the long title to Act 694 is as follow:
An Act to provide for the establishment of the Malaysian Anti-Corruption Commission, to make further and better provisions for the prevention of corruption and for matters necessary thereto and connected therewith.
The preamble follows immediately after the long title. It states the reason for passing the Act. According to the authoritative author on Statutory Interpretation, a preamble may include a recital of the mischief to which the Act is directed and tends to be more comprehensive than a long title [see Statutory Interpretation (2nd Edn, 1992)]. For example, the preamble to the Security Offences (Special Measures) Act 2012 (Sosma) states as follow:
WHEREAS action has been taken and further action is threatened by a substantial body of persons both inside and outside Malaysia-
(1) to cause, or to cause a substantial number of citizens to fear, organised violence against persons or property;
(2) to excite disaffection against the Yang di-Pertuan Agong;
(3) which is prejudicial to public order in, or the security of, the Federation or any part thereof; or
(4) to procure the alteration, otherwise than by lawful means, of anything by law established;
AND WHEREAS parliament considers it necessary to stop such action.
The short title, long title and preamble are all important. The short title gives an Act of Parliament while the long title and preamble can be used in the courts to interpret the Act, as can be seen in the recent Federal Court case of Selva Vinayagam a/l Sures v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2020] MLJU 2100, decided over a month ago.
In this case, the Federal Court was faced with an argument put forward by the Senior Federal Counsel (SFC) appearing for the respondent (Deputy Home Minister) that the preamble to Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) was not an operating part of the statute. The learned SFC argued that the aid of the preamble was only to be taken when there was some doubt about the meaning of the operative part of the statute. Where the enacting part was explicit and unambiguous the preamble could not be resorted to, to control, qualify or restrict it.
It was further argued that the enacting words of the statute “are not always to be limited by the words of the preamble and must in many instances go beyond it, and when they do so, they cannot be cut down by reference to it.” Therefore, the preamble to Act 316 was not relevant for the purposes of construction or considering the scope of the provisions of s 6(1) of Act 316 as there was no ambiguity whatsoever in the latter.
The Federal Court, however, was not persuaded to agree with the arguments. This was especially because of sections 15 and 17A of the Interpretation Acts 1948 and 1967, which were forcefully argued by the learned counsel for the appellant in support of his argument that the long title and the preamble to Act 316 should be construed as part of Act 316.
Section 15 states that “the long title and preamble and every schedule (together with any note or table annexed to the schedules) to an Act or to any subsidiary legislation shall be construed and have effect as part of the Act or subsidiary legislation.”
Section 17A, on the other hand, states that in the interpretation of a provision of an Act, “a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
Federal Court Judge Vernon Ong, delivering the judgment of the Federal Court, said:
“The declared purpose of the Interpretation Acts as manifested in the long title to the Act was for the application, construction, interpretation and operation of written laws. Read in this light, s 17A underscores Parliament’s intention that the interpretation and construction of any written law shall have regard to the underlying purpose or object of the Act. And s 15 … emphasises the point by stating that the long title and preamble and every schedule shall be construed and have effect as part of the Act. That in our view is the codification of purposive rule of construction, which is not merely confined to the provision of a section of the Act, but also includes the purpose or object manifest in the long title and preamble of the Act.”
Now, the Emergency (Essential Powers) Ordinance 2021 is ― by virtue of Article 150(2C) ― an Act of Parliament, and is therefore subject to the same rules of interpretation as above.
The long title and preamble of the Ordinance are as follow:
Long title:
And Ordinance promulgated by the yang Di-Pertuan Agong pursuant to Clause (2B) of Article 150 of the Federal Constitution.
Preamble:
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;
AND WHEREAS the Yang di-Pertuan Agong is satisfied that immediate action is required to guarantee and preserve the security, economic life and public order.
The preamble to the Ordinance clearly refers to the 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).” The provisions of the Ordinance must therefore be congruous with the purpose or purposes of guaranteeing and preserving the security, economic life and public order arising from the Covid-19 pandemic.
It therefore begs the question whether section 14 of the Ordinance (on suspension of Parliament) is congruous with the legislative purpose of the Ordinance. The proclamation of emergency by the Yang Di-Pertuan Agong (YDPA) itself was pursuant to the YDPA being satisfied “that a grave emergency exists whereby the security, economic life and public order in the Federation are threatened arising from” the pandemic.
So, while no court shall have jurisdiction to entertain or determine any application, question or proceeding on any ground, regarding the validity of the proclamation and the Ordinance ― Article 150(8) ― provisions in the Ordinance may be challenged as being incongruous with the purpose of the proclamation and Ordinance.
Some constitutional scholars have suggested two substantive legal principles to check on emergency powers.
The first is the principle of non-derogation which alludes to a core of fundamental rights which form part of the basic structure of the constitution that cannot be infringed or limited, even in an emergency. Parliament is part of that basic structure.
The second is the proportionality principle which requires any derogation from fundamental rights not to be more severe than strictly required by the exigencies of the situation. This begs the question whether the suspension of Parliament is proportionate to the exigencies of the state that the country is in.
The decision of the Supreme Court of the United Kingdom in R (on the application of Miller) v The Prime Minister; Cherry and Ors v Advocate General for Scotland [2019] UKSC 41 may be instructive on suspension of Parliament. One of the questions before the UK apex court was “whether the Prime Minister's action [of advising the Queen to prorogue Parliament] had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account.”
Lady Hale, President of the Supreme Court, reading the judgment of the court together with Lord Reed said, “Of course it did. It prevented Parliament from carrying out its constitutional role.” The decision to advise Her Majesty to prorogue Parliament was accordingly held to be unlawful.
That said, a challenge by way judicial review of the Ordinance is difficult, but not impossible.
It shouldn't be treasonous, though. The YDPA is, after all, a constitutional monarch.
