KOTA KINABALU – A law body said that the country’s latest emergency law suffers from being in a legal conundrum, being unconstitutional unless it goes through Parliament’s endorsement.
Sabah Law Society president Roger Chin said until Parliament sits and passes the Emergency (Essential Powers) Ordinance 2021, it remains unconstitutional as stated in Article 150 of the federal constitution.
The Yang di-Pertuan Agong had declared a state of emergency in Malaysia on January 12, pursuant to Article 150 of the federal constitution.
However, Chin said that upon scrutiny of Article 150, it becomes apparent that 150(3) requires the proclamation to be laid before both houses of Parliament.
Significantly, the proclamation shall cease to have effect if a resolution is passed by both houses – the Dewan Rakyat and Dewan Negara – “annulling such a proclamation”.
In addition to that, Article 150(5), provides that while a proclamation is in force “Parliament may make laws if it appears to Parliament the law is required”.
Article 150(9) states that the houses of Parliament should be regarded as sitting “only if the members of each House are respectively assembled together and carrying out the business of the House”.
“This means that under the federal constitution, an emergency and any ordinance promulgated during the emergency need to be examined by Parliament, exercising its constitutional power of scrutiny of the government,” Chin said in a statement today.
“However, Section 14 of the Ordinance seeks to suspend the sitting of Parliament, and Section 15 does likewise to the sitting of the state legislative assembly.
“This would deprive Parliament of the crucial constitutional check and balance. As a result, the emergency is not able to be debated by the representatives elected by the people.
“The ordinance therefore is caught in the conundrum of requiring Parliament to pass it, but the ordinance seeks to suspend the very body that is required to give it legitimacy,” he said.
Chin said that as such, MPs from the various states also have no opportunity to debate the implications of suspending the state legislatures in view of the suspension of Parliament.
He said that if it was true that the underlying reason behind the declaration of emergency is to prevent an election, then the emergency should have been called for this limited reason only. – The Vibes, January 17, 2021
