Law minister confirms Emergency ended in Aug, but says ordinances still apply until Feb 2022

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Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Wan Junaidi Tuanku Jaafar says even though the nationwide Emergency expired on August 1, the Emergency Ordinances (EO) 2021 are still enforceable until February 2022. ― Bernama pic
Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Wan Junaidi Tuanku Jaafar says even though the nationwide Emergency expired on August 1, the Emergency Ordinances (EO) 2021 are still enforceable until February 2022. ― Bernama pic

KUALA LUMPUR, Oct 1 — The Emergency Ordinances (EO) 2021 are still enforceable until February 2022 even though the nationwide Emergency expired on August 1, since such Emergency laws have not been cancelled by Parliament, a parliamentary written reply has revealed.

This finally makes clear the status of the EOs — which had given the government temporary new powers, among other things — and whether they continue to have legal effect after the nationwide Emergency ended about two months ago.

Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Wan Junaidi Tuanku Jaafar made the disclosure in a parliamentary reply yesterday to Iskandar Puteri MP Lim Kit Siang who wanted to know whether the EOs — which were gazetted during the nationwide Emergency from January 11 to August 1 — were still in legal effect and if so, how long more they would still be in effect for.

Wan Junaidi explained that EOs are enforceable until they are revoked, annulled or ceased to be in effect, according to three legal positions as follows:

Revoked by the Yang di-Pertuan Agong under Article 150(3) of the Federal Constitution while the Emergency Proclamation is still in force;

Annulled through a resolution passed by both Houses of Parliament under the same Article 150(3); or

Cease to be in effect six months after the Emergency expires according to Article 150(7) of the Federal Constitution.

He then cited a statement issued by then prime minister Tan Sri Muhyiddin Yassin on August 3 saying that the process for the Agong’s revocation of the EOs as advised by the Cabinet on July 23 could not be completed.

“In regards to the aforementioned matter, since the Emergency Proclamation 2021 had ceased to be in effect on August 2, 2021, therefore His Majesty is no longer accorded the power to revoke the Emergency Ordinances 2021 under Article 150(3),” he wrote.

In other words, as the Emergency has ended without the Agong exercising his constitutional powers to revoke EOs (which is a power that applied when the Emergency was in force), these ordinances were not cancelled through this method.

As for the second method of Parliament cancelling the EOs through resolutions to annul them, this too did not take place, Wan Junaidi said.

“For the purpose of annulling the Emergency Ordinances 2021 by both Houses of Parliament according to Article 150(3) of the Federal Constitution, it is stipulated that the resolutions for annulment must be passed by both Houses of Parliament.

“As of the Special Meeting of the Third Session of the 14th Parliament (which took place from July 26 to August 5), it is observed that there are no resolutions in regards to the annulment of any Emergency Ordinances 2021 passed by both Houses of Parliament.

“However, if Parliament does not annul the Emergency Ordinances 2021 under Article 150(3) of the Federal Constitution, Article 150(7) of the Federal Constitution provides that the EOs will only stop being in force after the end of a six months grace period following the expiration of the Emergency Proclamation 2021, which is starting from February 2, 2022,” Wan Junaidi said.

This is affirmed as there have been no gazettes published by the federal government on the official federal legislation website over the revocation of EOs.

Wan Junaidi, however, noted that even though the EOs were still enforceable until annulled by Parliament under Article 150(3) or expiration of the six-month grace period under Article 150(7), some EOs — whose provisions explicitly state “for so long as the Emergency is in force” — are only enforceable throughout the state of Emergency period (January 11 to August 1).

In other words, parts of the EOs that had the phrase “for as long as the Emergency is in force” would no longer be applicable now, as the Emergency has ended.

He explained that this was due to the fact that those EO provisions were closely linked to rights guaranteed under the Federal Constitution, fundamental human rights and a country that practises a democratic system, and that their continued existence after the Emergency ended would be difficult to defend or justify.

“In this case, since the Emergency Proclamation has effectively stopped being in force on August 2, 2021, the EOs whose provisions explicitly state ‘for so long as the Emergency is in force’ ceased being enforceable effective August 2,” Wan Junaidi explained.

Accordingly, there were a total of seven EOs introduced in 2021 (six plus an amendment):

1. Emergency (Essential Powers) Ordinance 2021 and its amending ordinance

2. Emergency (Essential Powers) (Amendment) Ordinance 2021

3. Emergency (Essential Powers) Ordinance (No. 2) 2021

4. Emergency (Prevention and Control of Infectious Diseases) (Amendment) Ordinance 2021

5. Emergency (Employees’ Minimum Standards of Housing, Accommodations and Amenities) (Amendment) Ordinance 2021

6. Emergency (Offenders Compulsory Attendance) (Amendment) Ordinance 2021

7. Emergency (National Trust Fund) (Amendment) Ordinance 2021

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