Six questions about: Declaring an emergency in Malaysia

Kenneth Tee
·5-min read
Article 150 of the Federal Constitution permits the Yang di-Pertuan Agong to issue a Proclamation of Emergency and to govern the country by issuing ordinances that cannot be challenged in a court of law. — Picture by Firdaus Latif
Article 150 of the Federal Constitution permits the Yang di-Pertuan Agong to issue a Proclamation of Emergency and to govern the country by issuing ordinances that cannot be challenged in a court of law. — Picture by Firdaus Latif

KUALA LUMPUR, Oct 23 — Speculation is rife that the Cabinet has agreed to invoke emergency powers to help combat the third wave of the Covid-19 pandemic, but also in the midst of political instability of a weak Perikatan Nasional government.

Prime Minister Tan Sri Muhyiddin Yassin is now meeting Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah at the Istana Abdulaziz in Kuantan, believed to be advising the proclamation to declare the emergency.

However, it is unclear what the emergency powers being sought are at the moment, as the breadth and scope under a state of emergency are far ranging.

Reports have so far suggested that Putrajaya is seeking a dubious so-called state of “partial emergency”, also dubbed as “economic, health, or political emergency”.

Malay Mail lists down the most frequently asked questions about an emergency in the country:

What is an emergency?

A state of emergency in Malaysia is a situation in which the federal government is empowered to be able to put through policies that it would normally not be permitted to do for the safety and protection of their citizens.

In other words, the executive branch will have almost absolute authority over the running of the country in a crisis, without check and balance from the other two branches: the legislative and judiciary.

Who can declare an emergency?

Article 150 of the Federal Constitution permits the Yang di-Pertuan Agong to issue a Proclamation of Emergency and to govern the country by issuing ordinances that cannot be challenged in a court of law.

This proclamation can only be issued on the advice of the Cabinet or the prime minister.

Why would an emergency be declared?

His Majesty can do so if he is satisfied that a grave emergency exists — in terms of security, economic life or public order — in the country or any part thereof is threatened as permitted under Article 150(1) of the Federal Constitution.

Under the same Article, a proclamation may also be issued before the actual occurrence of the event, if the Agong is satisfied that there is imminent danger of said event should it happen.

How would an emergency affect life?

An emergency declaration would mean that the federal government can expand its authority to any matter, even including those within the jurisdiction of state governments, according to Article 150(4) of the Federal Constitution.

Any Emergency Ordinance (EO) made during the proclamation also has the same effect as an Act of Parliament, and they remain effective until they are revoked by the Agong or repealed by Parliament under Article 150 Clause (2C) and Article 150(3).

Under Clause (2C), the Agong is also conferred absolute power to enact the EO, similar to how Parliament has power to make laws.

EO can also supersede the Federal Constitution, except on the matters of Islamic law or custom of the Malays; native law or customs of Sabah and Sarawak; citizenship; religion or language, as stated under Article 150(6) and Clause (6A).

One of the most well-known EO is the Emergency (Public Order and Crime Prevention) Ordinance, 1969, whose provision allows for indefinite detention without trial enacted by the then federal government as part of the state of emergency following the May 13 riots.

It was then repealed in 2013, with the Prevention of Crime Act (POCA) now used to facilitate preventive detention and detention without trial.

Similar to how the Agong has the power to proclaim an emergency, the power to revoke is also vested in His Majesty.

Article 150(7) of the Federal Constitution also states that any EO or law enacted shall cease to have effect at the expiration of a period of six months beginning with the date on which a proclamation of emergency is repealed unless they are tabled before Parliament when both Houses convene simultaneously.

When have emergencies been declared in Malaysia?

Since the country’s independence in 1957, Malaysia has proclaimed only four emergencies:

1. 1964, nationwide during the Indonesia-Malaysia Confrontation.

2. 1966 in Sarawak, following a political crisis involving Stephen Kalong Ningkan's leadership as chief minister.

3. 1969, nationwide following the May 13 race riots.

4. 1977 in Kelantan, following a political impasse and street violence when then mentri besar Datuk Mohamed Nasir called for the dissolution of the Barisan Nasional state assembly after refusing to resign when ordered by his party PAS.

All these emergencies have since been revoked.

Where else in the world have emergencies been declared to tackle Covid-19?

Italy and Spain have declared states of emergency in accordance with their constitutional provisions.

Other European countries that have similarly declared states of emergency are Armenia, Bulgaria, Austria, Belgium, Argentina, Estonia, Georgia, Latvia, Moldova and Romania.

The United Kingdom has also introduced “emergency power” but not declared a state of emergency.

In Asia, Japan declared a state of emergency in April at the height of the Covid-19 outbreak in the country.

According to a guideline of emergency declarations to tackle Covid-19, the United Nations Human Rights office said the powers should be used within the parameters provided by international human rights law, particularly the International Covenant on Civil and Political Rights (ICCPR).

“Such powers should be time-bound and only exercised on a temporary basis with the aim to restore a state of normalcy as soon as possible,” it said in an advisory in April.

“Even without formally declaring states of emergency, States can adopt exceptional measures to protect public health that may restrict certain human rights. These restrictions must meet the requirements of legality, necessity and proportionality, and be non-discriminatory.”

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