FEBRUARY 5 — Article 150(8) of the Federal Constitution states:
(8) Notwithstanding anything in this Constitution—
(a) the satisfaction of the Yang di-Pertuan Agong mentioned in Clause (1) and Clause (2B) shall be final and conclusive and shall not be challenged or called in question in any court on any ground; and
(b) no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of—
(i) a Proclamation under Clause (1) or of a declaration made in such Proclamation to the effect stated in Clause (1);
(ii) the continued operation of such Proclamation;
(iii) any ordinance promulgated under Clause (2B); or
(iv) the continuation in force of any such ordinance.
It would seem that from the wordings of Article 150(8), there is no way whatsoever to directly or indirectly challenge the proclamation of the Emergency or any ordinance promulgated thereunder.
Now, this Clause (8) to Article 150 was introduced by way of an amendment vide Act A514 paragraph 15(d) which came in force from 15.05.1981.
It would seem that the starting point to consider any form of challenge of the proclamation of emergency or any ordinance promulgated thereunder, would be the very amendment act Act A514 paragraph 15(d). Should this paragraph 15(d) of Act A514 be declared null and void, then Article 150(8) would cease to exist.
If Article 150(8) ceases to exist, then it would necessarily mean that the proclamation of emergency and any ordinances promulgated thereunder would be subject to the scrutiny of the courts.
However, should such a situation arise, the courts are still bound by the other provisions of the Federal Constitution. And one of it is Article 150(6).
Article 150(6) of the Federal Constitution states:
“(6) Subject to Clause (6A), no provision of any ordinance promulgated under this Article, and no provision of any Act of Parliament which is passed while a Proclamation of Emergency is in force and which declares that the law appears to Parliament to be required by reason of the emergency, shall be invalid on the ground of inconsistency with any provision of this Constitution.”
What this simply means is any ordinance promulgated or Act of Parliament passed during this emergency can violate any provision of the Federal Constitution.
Now, even should Article 150(8) cease to be in the picture and the emergency ordinance promulgated is scrutinized by the courts, it would seem like the courts cannot go against Article 150(6) of the Federal Constitution, being the highest law of the land.
The introduction of the present Article 150(6) came through an amendment vide Section 39(2) of the Malaysia Act (No. 26 of 1963) which came in force from 16h September 1963.
The original Clause 150(6) read as follows:
“(6) No provision of any law or ordinance made or promulgated in pursuance of this Article shall be invalid on the ground of any inconsistency with the provisions of Part II, and Article 79 shall not apply to any Bill for such a law or any amendment to such a Bill.”.
Part II of the Federal Constitution refers to the fundamental liberties guaranteed under the Federal Constitution (Articles 5 to 13).
Prior to 1963, during an emergency, under the old Article 150(6), laws or ordinances that would have violated Part II (Articles 5 to 13) of the Federal Constitution would still have been considered valid.
However, with the amendment through Section 39(2) of the Malaysia Act (No. 26 of 1963), now, under the present Article 150(6), during an Emergency, laws or ordinances that violate ANY PART OF THIS CONSTITUTION would still be valid.
This could also mean, in my humble opinion, every part of the Constitution. In other words, a possible suspension of the entire Federal Constitution.
Can, and should, such an amendment stand be upheld today?
This is where the supremacy of the Constitution expressly stated in Article 4(1) of the Federal Constitution comes into play.
Article 4(1) of the Federal Constitution states:
“Supreme law of the Federation
4. (1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”
The question that arises: Is Section 39(2) of the Malaysia Act (No. 26 of 1963 void for being inconsistent with Article 4(1) of the Federal Constitution?
It would appear that the original intent of the framers of the original Clause (6) to Article 150 of the Federal Constitution, clearly, was not to take away the entire constitutional supremacy given by Article 4(1) during an emergency. Hence why it was only limited to Part II.
In other words, no amending law (in this case Section 39(2) of the Malaysia Act (No. 26 of 1963) can take away the entire constitutional supremacy given by Article 4(1). To hold otherwise would go against the basic structure doctrine: the constitution has certain basic features that cannot be altered or destroyed through amendments.
To have an amendment that gives room or opportunity to suspend the entire constitution certainly without a doubt goes against the basic structure doctrine. This is simply because never, at any point in time, whether in times of peace or emergency, can there be a situation where the entire constitution is liable to be suspended. Unfortunately, the present Article 150(6) gives room and opportunity for exactly that.
We can perhaps draw an analogy from the Constitution of India, and learn from their approach.
In India, from a reading of Article 358 and 359 of the Indian Constitution , only provisions of their Part III (Fundamental Rights) are suspended during emergency, and not the entire constitution itself.
This is why, it is humbly submitted, that when our framers originally limited the suspension of only Part II during emergency, they were in actual fact by necessary implication intending not to include the suspension of other parts of the Federal Constitution. In other words, laws passed or ordinances promulgated during emergency should be subject to other provisions of the Federal Constitution to the exclusion of Part II.
Therefore, it is humbly submitted that the constitutional amendment of Section 39(2) of the Malaysia Act (No. 26 of 1963) ought to be revisited, and be brought for the proper interpretation and determination by the Courts on its constitutionality.
If Section 39(2) of the Malaysia Act (No. 26 of 1963) is found to be unconstitutional, it would render the amendment to Article 150(6) unlawful, and therefore the original Clause 6 to Article 150 would be brought back.
Should this happen, then our position on suspension of constitutional rights during a proclamation of emergency would be consistent with other jurisdictions, like in India, as we just saw.
I stand corrected, as I am not sure if Section 39(2) of the Malaysia Act (No. 26 of 1963) is beyond reach today.
I say beyond reach because a challenge to Section 39(2) of the Malaysia Act (No. 26 of 1963) would be akin to posing a question regarding the validity of ‘any ordinance’ mentioned in Article 150(6), which would then in turn be caught by Article 150(8)(b)(iii).
*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
