KOTA KINABALU – Is the Emergency (Essential Powers) Ordinance 2021, gazetted in line with the emergency proclamation declared by the Yang di-Pertuan Agong in January, still in force despite the proclamation itself having lapsed yesterday?
This is question posed by the Sabah Law Society (SLS), which took the federal cabinet to task today for trying to “unilaterally” revoke the emergency ordinance without the consent of the king.
Its president, Roger Chin, said in a statement it remains a fact that the ordinance has not actually been revoked, notwithstanding the fact that the Agong may have been informed of the cabinet’s decision on the matter.
Chin said it is important that the law be tabled and debated before Parliament, and the question of whether it is revoked or annulled is crucial to ensure it will not remain in force until February 1 next year, he added.
According to Article 150(7) of the federal constitution, any ordinances promulgated during the emergency period may still be in effect for a period of six months from the date on which the emergency period is lifted, he said.
Clarifying further, Chin told The Vibes: “The government may have said it has revoked the ordinance, but in reality, this has not been done.”
He stressed in the statement that the assertion by Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Takiyuddin Hassan in the Dewan Rakyat on July 26 on the retroactive revocation of the ordinance was misguided and ill-advised, in view of the provisions of the constitution referred to by the king.
The failure to lay the ordinance before Parliament to debate and decide whether to revoke the law goes against Article 150(3) of the constitution, said Chin.
This is despite Article 44 stating that the legislative authority of the federation shall be vested in Parliament.
“The Sabah Law Society agrees with the statement by the Yang di-Pertuan Agong, namely that the provisions of Article 150(2B), read together with Article 150(3) of the federal constitution, provide that the power to promulgate and revoke emergency ordinances is vested in His Majesty,” he said.
“Simply put, even if what was said in the Prime Minister’s Office statement dated July 29, 2021, is correct, merely informing the Yang di-Pertuan Agong of the cabinet’s decision to revoke the EO as of July 21, 2021 does not actually make the EO revoked as at July 21, 2021,” he said, referring to the emergency ordinance.
Even though the king may need to heed the advice of the cabinet in line with Article 40(1) – which states that the king shall act on the advice of the executive but is entitled to request additional information – the cabinet still cannot unilaterally revoke the ordinance without first getting his consent. This and the subsequent gazette notification must be done as they are important parts of legal procedure, Chin added.
Chin described the action of the Perikatan Nasional government as failing to respect the position and functions of Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah.
Under Article 32(1), the Agong is the supreme head of the Federation.
“It was plain to see that persons in power were desperate not to allow the Parliament sitting to continue,” he said.
“The use of the Health Ministry – arguably the most important ministry in present times – as a reason to adjourn was entirely transparent in its intention and has sullied the reputation of the MoH: it appeared that day that the real power in Malaysia was seated in the house of the prime minister and not the houses of Parliament.
“What has made matters even worse is the fact that persons responsible for causing the debacle subsequently issued statements repeating their supposed dedication to the rule of law and the supremacy of the king.
“The statements are unbelievable in light of their actual conduct, and it appears that the only respect being given to the provisions of the federal constitution and the Agong is merely lip service.” – The Vibes, August 2, 2021
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