I AGREE with Rajan Navaratnam (Of course Agong’s consent is needed!) that Thomson CJ’s judgment in the case of Government of the State of Kelantan v Government of the Federation of Malaya and Tunku Abdul Rahman Putra Al-Haj [1963] 1 MLJ 355 must be confined to the facts of the case.
The case did not decide on emergency powers under Article 150 of the federal constitution, which has had a facelift since Merdeka. No fewer than six amendments were made by Parliament: Act 10/1960 (1960); Act 26/1963 (1963); Act 68/1966 (1966); Act A514 (1981); Act A566 (1983); and Act A584 (1984).
Arguably, the amendments in 1981 are by far the most significant as they introduced clauses (2A) to (2C). The last provides that an emergency ordinance has the “full force and effect as if it is an Act of Parliament”.
Reading clauses (2C) and (3), which was also amended in 1981, of Article 150 together, the emergency ordinances (EOs) can be revoked or annulled prior to being laid before both houses of Parliament. Similarly, the proclamation of emergency before its expiry on August 1.
But, have all the due processes been observed and followed, as asserted by the government?
Reference has been made by some to Lord Diplock’s judgment in Teh Cheng Poh v PP (1979):
The power to revoke, however, like the power to issue a proclamation of emergency, vests in the Yang di-Pertuan Agong, and the constitution does not require it to be exercised by any formal instrument.”
So, there you read it: no formal instrument is required.
But here again caution must be exercised. Lord Diplock was specifically referring to the proclamation of emergency. This can be distinguished from an EO. By definition, a proclamation is a subsidiary legislation (section 3 of the Interpretation Acts 1948 and 1967 (Act 388)).
Despite Lord Diplock’s “no formal requirement”, there is a need for some formalities since a proclamation is a legal instrument. As the most minimum, it must be assented to, signed by the king and then published in the gazette.
Proclamation takes effect upon publication in the gazette.
An EO, on the other hand, is of higher status than a proclamation. It is primary legislation since it is an act of Parliament (Article 150(2C)). An act of Parliament can be amended and repealed. It is amended by another act of Parliament called an amendment act. It is repealed by a repeal act.
Example: Malaysian Anti-Corruption Commission (Amendment) Act 2018 (Act A1567) – the amending act is identified by the capital ‘A’ followed by the number, like A1567 – amends the MACC Act 2009 (Act 694) – the principal act identified by the number only, like 694 – in 2018. An important amendment to Act 694 by Act A1567 is the new section 17A which extends the criminal liability of a commercial organisation to its director or manager.
An example of a repeal act is the Anti-Fake News (Repeal) Act 2020 (Act 825), passed during the PH government, which repeals the Anti-Fake News Act 2018 (Act 803). Note that a repeal act is identified by the number only, like the principal act.
On the same note, an EO can be amended by an amendment ordinance, like the Emergency (Essential Powers) (Amendment) Ordinance 2021 (PU(A) 151/2021), which amended the Emergency (Essential Powers) Ordinance 2021 (PU(A) 12/2021). Note that EOs are identified by PU(A) followed by the number and year, like PU(A) 151/2021.
If an EO is to be revoked – to revoke is to repeal (section 3 Act 388) – it is to be revoked by a repeal ordinance. This explains why a draft Emergency (Repeal) Ordinance 2021 was prepared by the Attorney-General’s Chambers when the de facto law minister and the attorney-general had an audience with the Yang di-Pertuan Agong.
If this repeal ordinance were to be assented to, signed by the Agong and then published in the gazette, it would have revoked the EO or EOs, depending on the provisions in the repeal ordinance.
So there you have it. In my view, the processes to revoke the EOs have not been completed.
In 1963, Thomson CJ did not lose sight of the magnitude of the question he had to decide on; the executive authority of the Federation, which “extends to all matters with respect to which Parliament may make laws which includes external affairs, including treaties and agreements”.
Yes, on matters of external affairs including treaties and agreements, there is nothing whatsoever in the constitution requiring consultation with any state government or the ruler of any state.
But today, let’s not lose sight of the concluding remarks of His Royal Highness Sultan of Perak, the late Sultan Azlan Shah in his essay The Role of Constitutional Rulers (first published in (1982) JMCL 103-118, and subsequently reprinted in Trindade & Lee, The Constitution of Malaysia, Further Perspectives and Developments, Essays in Honour of Tun Mohamed Suffian):
A king is a king, whether he is an absolute or constitutional monarch. The only difference between the two is that whereas one has unlimited powers, the other’s powers are defined by the constitution. But it is a mistake to think that the role of a king, like a president, is confined to what is laid down by the constitution. His role far exceeds those constitutional provisions.”
Daulat Tuanku! – The Vibes, August 1, 2021
Hafiz Hassan reads The Vibes
