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The Issue with Proclamation of Emergency and Emergency (Essential Powers) Ordinance 2021

I am an independent researcher on Declassified Documents and Constitutional Rights of the Borneo States of Sabah and Sarawak

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Definition of Proclamation of Emergency

The definition of the “Proclamation of Emergency” can be found in Article 150 of the Federal Constitution. It is the heading for Article 150. The heading for Article 150 is “Proclamation of Emergency”. To understand what is the “Proclamation of Emergency”, refer to Article 150(1), which expressed that;

“If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.”

Therefore, the Proclamation of Emergency means, a declaration by the Yang di-Pertuan Agong (under His Majesty prerogative power) that a grave emergency exists.

Under Article 44 of the Federal Constitution;

“The legislative authority of the Federation shall be vested in a Parliament, which shall consist of the Yang di-Pertuan Agong and two Majlis (Houses of Parliament) to be known as the Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives).”

As specify in Article 44, the Yang di-Pertuan Agong is part of the legislative authority of the Federation. Therefore, the declaration under Article 150(1) has a force of law and how to govern the declaration is made based on the subsequent Clause of Article 150 and the subsequent Emergency (Essential Powers) Ordinance 2021.


Who has the right to declare a Proclamation of Emergency?

Under Article 150(1), the Yang di-Pertuan Agong has the right to declare a Proclamation of Emergency. Article 150(1), which expressed that;

“If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.”


Does the Proclamation of Emergency have a lifespan?

The Proclamation of Emergency has no lifespan under the current Federal Constitution. The lifespan of the Proclamation of Emergency in Article 150(3) has been amended by Act 10/1960, section 29, in force from 31-05-1960. Previously, prior to 31-05-1960, the Proclamation of Emergency has the lifespan of 2 months and the lifespan will only be renew for another 2 months by the approval given by a resolution of each House of Parliament. After the amendment in 1960, the Proclamation of Emergency don’t have a lifespan.

Make no mistake, the lifespan in Article 150(7) is the expiration date after the Proclamation of Emergency ceases to be in force. Article 150(7) is not expiration date since the beginning of the issuance of emergency.

However, in a specific case of Proclamation of Emergency 2021, the lifespan was given “with effect from 11 January 2021 until 1 August 2021”. Nonetheless, there is another provision in the declaration at the end which expressed that “To be laid before Parliament pursuant to Clause (3) of Article 150 of the Federal Constitution”. This mean, between 11 January 2021 until 1 August 2021, the Proclamation of Emergency 2021 must be laid before Parliament in accordance to Article 150(3). Article 150(3) expressed that,

“A Proclamation of Emergency and any ordinance promulgated under Clause (2b) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance, but without prejudice to anything previously done by virtue thereof or to the power of the Yang di-Pertuan Agong to issue a new Proclamation under Clause (1) or promulgate any ordinance under Clause (2b).”

Therefore, under the caveat of “To be laid before Parliament pursuant to Clause (3) of Article 150 of the Federal Constitution” in the Proclamation of Emergency 2021 itself and read together with Article 150(3), the lifespan of the Proclamation of Emergency is dependant on two conditons;

I. “if not sooner revoked”, and

II. “cease to have effect if resolutions are passed by both Houses annulling such Proclamation”

Either options must be made between 11 January 2021 until 1 August 2021.

Under Option 1, section 2(1) of the Emergency (Essential Powers) Ordinance 2021 is applied. On which, “independent special committee to advise the Yang di-Pertuan Agong on the continuing existence of the grave emergency”. It is the independent special committee, who will advise the Yang di-Pertuan Agong on the revocation of the proclamation of Emergency anytime between 11 January 2021 until 1 August 2021. Not the Federal Cabinet. This is again specify in Section 18 of Emergency (Essential Powers) Ordinance 2021, which expressed that;

“In the event of any conflict or inconsistency between the provisions of this Ordinance and any other written law, the provisions of this Ordinance shall prevail and the conflicting or inconsistent provisions of such other written law shall be deemed to be superseded to the extent of the conflict or inconsistency”

Here, it is clear that Section 18 prevail over any written law, and only the independent special committee can advise the Yang di-Pertuan Agong on the revocation of the Proclamation of Emergency.

Under Option 2, it is more straight-forward. Both House of Parliament must make a resolution either to annul or not the Proclamation of Emergency 2021 and its ordinances. However, the question arises, when exactly the Proclamation of Emergency 2021 should be laid before Parliament? The answer is in the Proclamation of Emergency 2021 itself read together with the Eleventh Schedule of the Federal Constitution. Under the Proclamation of Emergency 2021, the time to laid the Proclamation of Emergency 2021 before Parliament is between 11 January 2021 until 1 August 2021.

But, when exactly between 11 January 2021 until 1 August 2021? The answer as specify in the Eleventh Schedule of the Federal Constitution is in Section 38 (Provision when no time prescribed)

When no time is prescribed or allowed within which anything shall be done, such thing shall be done with all convenient speed and so often as the prescribed occasion arises.”

This means, the Proclamation of Emergency must be laid as soon as possible (convenient speed) after the declaration was made between 11 January 2021 until 1 August 2021. The prescribed occasion is the three times that the Yang di-Pertuan Agong and the Rulers advised the Proclamation to be laid before the parliament. Both of these when “no time prescribed” as specify in the Eleventh Schedule has been breached by the government. But, I’ll let you all to judge on this.

The breach of both of this requirement happen, when the Minister in the Prime Minister's Department in charge of Parliament and Law, told the Parliament on 26 July 2021, that the Proclamation of Emergency and all of its ordinances has been revoke on 21 July 2021. This is in breach of Option 1. Only Yang di-Pertuan Agong (under the advice of the independent special committee) can revoke the Proclamation of Emergency before 1 August 2021.

However, does the Proclamation of Emergency automatically end on 1 August 2021?

The answer is, for Option 1 (revocation by the yang di-Pertuan Agong), if the date 1 August 2021 is lapse without the independent special committee advise the Yang di-Pertuan Agong “on the continuing existence of the grave emergency” (either to end or pro-long the emergency), the convention will arise, meaning the prerogative power of the Yang di-Pertuan Agong will be at play. The Yang di-Pertuan Agong will answer your question here, on what will happen after 1 August 2021.

The answer for Option 2 (laid before Parliament), if the date 1 August 2021 is lapse, that’s mean the government has breached Article 150(3) of the Federal Constitution, as the Proclamation of Emergency 2021 must be laid at a “convenient speed” and “as the prescribed occasion arises” between 11 January 2021 until 1 August 2021. A serious breached, on which, the Prime Minister and his Cabinet must take responsibility, or the Yang di-Pertuan Agong will use His prerogative power under the convention in Option 1. What kind of convention will be at play, the Yang di-Pertuan Agong will answer it for you. Under Article 41 of the Federal Constitution,

“The Yang di-Pertuan Agong shall be the Supreme Commander of the armed forces of the Federation.”


If the Proclamation of Emergency has an expiration date, will it have to be announced again or will the emergency automatically end?

As explain in Question No.3 above, in general, Proclamation of Emergency don’t have expiration date. In case of the specific Proclamation of Emergency 2021, the expiration date is 1 August 2021, but with two conditions as given in details above.


What is the difference between an Emergency Ordinance and a Proclamation of Emergency?

Simply put, Emergency Ordinances give the details on how to govern the Proclamation of Emergency.


Is the emergency ordinance still in force if the emergency proclamation period expires?

Due to the amendment in 1960 on Article 150(3), the current Federal constitution under Article 150(3) express that the Proclamation of Emergency has no period of expiration. However, if the government decide to rescinded the Proclamation of Emergency, by annulling it after it has been laid before the Parliament, the emergency ordinances will cease to have effect after six months after the resolution in both Houses of Parliament under Article 150(7).

In case of Proclamation of Emergency 2021, which has a lifespan between 11 January 2021 until 1 August 2021, attached with it 2 other conditions, if the 1 August 2021 is lapse, the Yang di-Pertuan Agong prerogative role will be at play in deciding what happen to the emergency ordinances.


What are the implications of the emergency ordinance if it is not revoked and the date of the proclamation of emergency expires?

If the independent special committee advise the Yang di-Pertuan Agong to not revoke the Proclamation of Emergency after 1 August 2021, then the emergency will be extended based on the specific advise given. New Proclamation of Emergency might be declare or another ordinance under the current Proclamation of Emergency will be gazetted.


What is the procedure for Emergency Ordinance to be revoke?

The independent special committee will advise the Yang di-Pertuan Agong on the revocation of the Proclamation of Emergency 2021, based on Section 2(1) of the Emergency (Essential Powers) Ordinance 2021. This must be done between 11 January 2021 until 1 August 2021.

Another way is both Houses of Parliament annul the Proclamation of Emergency 2021 based on Article 150(3), and then, the Yang di-Pertuan Agong will give a royal assent on the annulment. However, the Prime Minister can still advise the Yang di-Pertuan Agong to make another Proclamation of Emergency, and if the Yang di-Pertuan Agong satisfies, another emergency will be put in place. Maybe specific to postpone the election in Sarawak.

This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.

© 2021 Dr Zulfaqar Sa'adi

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