An examination of the proclamation of Emergency with reference to the independent special committee to advise the Agong — Philip TN Koh

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FEBRUARY 24 — The Committee is established pursuant to S.2(1) of Ordinance 2021(PU(A0(12)and it states that its role is to advise His Majesty on the continuing existence of a grave emergency threatening the Federation as, “ . Arising from the epidemic of an infectious disease, namely Coronavirus Disease (Covid-19).”

File picture shows Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah attending the investiture ceremony held in conjunction with the Federal Territory Day celebration at Istana Melawati, Putrajaya February 1, 2020. — Bernama pic
File picture shows Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah attending the investiture ceremony held in conjunction with the Federal Territory Day celebration at Istana Melawati, Putrajaya February 1, 2020. — Bernama pic

Who advises His Majesty under the Constitution?

Article 39 read with Article 40 of the Federal Constitution that His Majesty shall act in accordance of the Executive, the Cabinet through a Minister authorised by the Cabinet. The Minister will be normally the Prime Minister. His Majesty is also entitled to any information concerning the Government which is available to the Cabinet.

The Basic Structure of the Federal Constitution provides that the body that provides advice to His Majesty is the Cabinet through the designated Minister.

The Ordinance 2021 is promulgated pursuant to Article 150 following a Proclamation of Emergency by His Majesty on the 11 January 2021.

A significant feature of the Proclamation as gazetted under PU(A)(7)is that the Emergency commences on the 11th January2021 and ends on the 1st August 2021.

This is novel as no other Emergency proclamations in the past carried a termination date.

Article 150 of the Federal constitution has expressly provided for the manner and mode which a Proclamation and Ordinance passed thereto is to be laid before the Parliament. The language of Art 150 is in mandatory, “ . Shall be laid before both House of Parliament,”; Parliament is the body vested with authority to revoke and annul the Emergency and Ordinance(s) promulgated by the Executive.

Article 150(3) has a clear provision that a Proclamation and any Ordinance promulgated can be revoked without being laid before Parliament. There is an operative phrase,”... and, if not sooner revoked .;” No phrase in the Constitutional text can be considered meaningless. So according to Art 150 the Proclamation of Emergency 2021has a revocation date, i.e., 1st August 2021 and or His Majesty acting on advice from the Prime Minister as authorised by the Cabinet may proffer an earlier date other than 1st August 2021.

What happens to the Ordinance 2021 upon the termination of the Proclamation 2021 on or before 1st August 2021?

Although the Ordinance 2021 has no termination date it can be implied that the Executive could revoked the same together on or before 1st August 2021.Until and unless the Executive so revoked before 1st  August 2021 the Ordinance continues until Art 150(7) applies.

Art 150 (7) states that at the expiration of a period of six (6) months beginning with the date on which the Proclamation “ ceases to be in force, any ordinance promulgated shall also ceased to have effect.”

So we now have a situation where by express statement the Proclamation of PU (A) (7)is revoked and ceases to have effect on the 1st August 2021 and on 31st January 2021 the Ordinance PU(A)(12 ) will also cease to have effect. The significance of this will be at this date the Committee will also cease to have any existence as it is wholly a creature of the Ordinance. So, if the Proclamation is revoked earlier the period of existence of Ordinance will be six (6) months from that date of revocation.

The provision that any scheduled sitting of Parliament and State Legislature is cancelled will also no longer be in force. The Federal and State Legislatures can then be scheduled and be held. Restoring the sovereign power of the people representatives.

This article does not presume to discuss the abiding question of the constitutionality of the Proclamation and the Ordinance which awaits the judgment of the Federal Court, our Apex judicial decision maker whose rulings are final.

Para 23 of Prime Minister’s explanatory statement for the Emergency and the Committee is worth quoting:

“To ensure fair and transparent implementation of the emergency period, and independent Special Committee will be established under an Ordinance to advise His Majesty whether a major emergency still exists in the Federation to continue with the period of the Emergency Proclamation or terminate the Proclamation earlier than the date designated”.

Three major elements are set up that guides the raison detre of the Committee: i) the Objective of the Committee is to “ensure fair and transparent implementation of the emergency period “; ii) advisory recommendation to His Majesty whether a major emergency still exists in the Federation so that His Majesty may take into consideration the Committee’s advice” to continue with the Emergency Proclamation or terminate the Proclamation earlier than the date designated.

It is therefore incumbent on the Committee that it has “authority” and “power” to request for requisite information from government agencies, authorities and office holders so as to provide a sound basis for the Committee to based their advisory recommendation to His Majesty;

In discharging the Committee’s role to YDPA and positing on the main rationale for the Proclamation and the Ordinance 2021 the Committee should monitor: the Covid-19 statistics, the availability of hospital and health facilities whether the critical levels have abated and been reduced, that economic life that as been presumed to have been threatened by the Pandemic has in fact in recovery mode and that the continuing of the Emergency will in fact be inimical and detrimental to economic life.

In arriving at such an advisory the Committee should call on all relevant sources of health indicators and statistics and ensure that objective verification of the same is applied. That private sector views are also sought from all sectors and particular all health care practitioner and NOT only from public sectors (who if course remain a primary and invaluable source of data).

Economic data in all sectors be it plantation, manufacturing, retail and service(tourism & hospitality) must be procured and validated.

The respected individuals who served in this Committee deserve to have clarity of what it means to serve in a transparent accountable manner. They also have legitimate expectation to obtain clarity as to whether in law the Committee is constitutionally and validly formed.

*Philip TN Koh is an Advocate & Solicitor of the High Court of Malaya.

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

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