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What's An Emergency? A Constitutional Expert Explains 15 Things You Need To Know

Prof Dr Shamrahayu A Aziz shared her knowledge.

What's An Emergency? A Constitutional Expert Explains 15 Things You Need To Know
Rumours are ripe that Prime Minister Tan Sri Muhyiddin Yassin will be declaring darurat (or a state of emergency) to ensure that the upcoming budget session in Parliament does not result in snap elections if it fails to pass. 

Although several news channels have quoted "sources" as saying the declaration will not affect the rakyat's daily lives, but only ensure that political turmoil does not affect handling of COVID-19 pandemic. 

But what does declaring emergency mean? 

Constitutional expert Prof Dr Shamrahayu Aziz

Constitutional expert Prof Dr Shamrahayu A Aziz was kind enough to explain what darurat is all about on her Facebook. Here's a translated version of her post: 

1) What does 'emergency' mean?

An 'emergency' means a situation concerning the security, economy and public order that cannot be managed under regular administrative system. 

Declaration of an emergency is a proclamation that is made by the Yang di-Pertuan Agong, through an official announcement, that such situation has arisen or is about to happen.

2) What's the impact of an emergency declaration?

The general impact of an emergency is that the Constitution will be suspended and the administration of the country will be decided by the executive.

Note: Executive here means the Federal Government and the 13 state governments.

The military may also take the lead in matters relating to security if necessary, more so when the emergency declared is due to threats against national security. 

The Parliament may still be in session, provided that it has not been dissolved. 

When a proclamation of emergency is in force, the federal executive powers cover all provisions under the state legislative powers with the executive to issue instructions to the state governments or any officer or state authority (Article 150(4)). 

Other implications are discussed in the next question. 

3) Is an emergency allowed in the constitution?

Yes. The constitution allows a declaration of emergency under Article 150.

Article 150 is one of three provisions under Part XI of the Federal Constitution, namely the part relating to the Special Powers Against Subversive Acts, Organised Violence and Acts and Crimes Prejudicial to the Public and Emergency Powers. 

Part XI allows laws meant for prevention to be made including preventive detention for the purpose of dealing with emergencies. 

Only an Agong can make the declaration.

4) What allows the Yang di-Pertuan Agong to make the declaration?

Yang di-Pertuan Agong may declare a state of emergency under Article 150(1) of the Federal Constitution if a major emergency to the security or economic life or public order in the federation or any part thereof existed. 

Under Article 150(2), the Yang di-Pertuan Agong can also make an emergency proclamation if he is satisfied that the threat of a major emergency to national security, or the economic life or public order is ALMOST true. 

Three grounds can be used by the Yang di-Pertuan Agong to make a declaration of emergency, that is if it is a threat to 
  1. National security; or 
  2. Economic life; or 
  3. Public order.

5) When and where can an emergency be declared?

An emergency can be declared by the Yang di-Pertuan Agong at any time, when the parliament exists, is in session or not, or after parliament has been dissolved.

The condition is that the above mentioned elements (i.e. a threat or emergency to security, economic life or public order) has happened or is about to arise, has been proven.

Emergency can be declared on the whole of the federation or any part of the federation under Articles 150(1) and (2). 

6) Do Yang di-Pertuan Agong declare emergency on his own power or on the advice of the Prime Minister?

Declaration of an emergency is the Yang di-Pertuan Agong's prerogative. Prerogative power here means the power of the monarchy which has been present even before the drafting of the Federal Constitution of Malaya (Malaysia). The power remains with the monarchy.

However, one question that arises is whether the prerogative can be exercised at His discretion or on the advice of the Prime Minister? 

Article 150(1) states: “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 a declaration to that effect”. 

The phrase "If the Yang di-Pertuan Agong is satisfied" brings the question of whether the Yang di-Pertuan Agong is satisfied (as sole judge) or on advice. 

Several judgements have made statements on the matter. 

The case of Stephen Kalong Ningkan (No.2) (1968) states that the Yang di-Pertuan Agong can declare a state of emergency if he is satisfied. 

Lord President Barakbah, in the majority decision, stated "… .In my opinion, the Yang di-Pertuan Agong is the sole judge…" 

However, the decision of the Teh Cheng Poh case by the Privy Council in 1979 stated that the action of the Yang di-Pertuan Agong was on the advice of the Cabinet. 

This is an agreed legal position. 

Lord Diplock stated: 
“Although this, like other powers under the Constitution, is conferred nominally upon the Yang di Pertuan Agong by virtue of his office as the Supreme Head of the Federation and is expressed to exercisable if he is satisfied of a particular matter, his functions are those of a constitutional monarch and except on certain matters that do not concern the instant appeal, he does not exercise any of his functions under the Constitution on his own initiative but is required by Article 40 (1) to act in accordance with the advice of the Cabinet. 

“So when one finds in the Constitution itself or in a Federal law powers conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affair exists or that particular action is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the Cabinet, or the opinion or satisfaction of a particular Minister to whom the Cabinet have delegated their authority to give advice upon the matter in question.” 

So, based on the Tan Cheng Poh case, declaration of emergency by the Yang di-Pertuan Agong has to be made based on recommendation of Prime Minister, the cabinet or a minister appointed by the cabinet.  

The cabinet will advise the Agong.

7) Is the Yang di-Pertuan Agong's decision to declare an emergency and make an Ordinance during an emergency justiciable? 

The verdict in the case of Stephen Kalong Ningkan (No.2) show that Lord President Barakbah clearly stated in the majority decision: “… In my opinion the Yang di-Pertuan Agong is the sole judge and once His Majesty is satisfied that a state of emergency exists, it is not for the court to inquire as to whether or not he should have been satisfied.” 

That means, according to Chief Justice Barakbah, the court cannot question the actions of the Yang di-Pertuan Agong. 

This majority view was refuted by Ong Hock Thye, a Federal Court Judge, in a similar judgment. Judge Ong Hock Thye expressed a minority view. 

He says: 

“His Majesty is not an autocratic ruler since Article 40(1) of the Federal Constitution provides that “in the exercise of his function under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet… Article 150 specifically provides that the emergency must be one 'whereby the security or economic life of the Federation or any part thereof is threatened ... if those words of limitation are not meaningless verbiage… Article 150 does not confer on the Cabinet an untrammeled discretion to cause an emergency to be declared at their mere whim and fancy.” 
Which means, the Yang di-Pertuan Agong did not rule autocratically because he acted on advice. 
In exercising his powers, the court can examine the decisions made by him and the Cabinet when making an emergency proclamation so that it is limited to the conditions mentioned, namely national security and economic life. 

Article 150 does not give irregular discretionary power. 

Teh Cheng Poh's decision, as quoted above, also states that the Yang di-Pertuan Agong's action under Article 150 can be reviewed by the court. 

After the decision of Teh Cheng Poh case as quoted, the Federal Constitution was amended to include provisions that clearly do NOT allow the court to review the decision of the Yang di-Pertuan Agong, or any action taken by him regarding the powers, functions and roles under Article 150.

This is found in Article 150 (8) which states: 

Notwithstanding anything in this Constitution - 
  1. the satisfaction of the Yang di-Pertuan Agong mentioned in Clause (1) and Clause (2B) shall be final and conclusive and shall not be challenged or called in question in any court on any ground; and 
  2. no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of- 
    1. a Proclamation under Clauses (1) or of a declaration made in such Proclamation to the effect stated in Clause (1); 
    2. the continued operation of such Proclamation; 
    3. any ordinance promulgated under Clause (2B); or 
    4. the continuation in force of any such ordinance. 
However, Clause 8 has not been tested in court. 

8) What is Yang di-Pertuan Agong's power in declaration of emergency?

Yang di-Pertuan Agong's power when it comes to declaration of emergency under Article 150 includes the power to make different proclamations, for different reasons or under different circumstances. 

This means that the King can make several emergency declaration simultaneously or at different times. This is stated under Article 150(2A). 

9) When can Yang di-Pertuan Agong declare an emergency?

The Yang di-Pertuan Agong can declare emergency when the Parliament House still exists, whether it's in session or not, or when the parliament is dissolved. 

10) What is Yang di-Pertuan Agong's role during emergency?

If the proclamation is made when both Houses of Parliament are not sitting concurrently, Yang di-Pertuan Agong can then put a law, called an Ordinance, into effect by official proclamation if he is satisfied that certain matters or circumstances exist which makes it necessary for him to take immediate action. This is mentioned in Article 150(2B). 

Meaning of "Houses of Parliament do not sit concurrently" can be understood in clause (9) of Article 150, which provides that "the Houses of Parliament shall be regarded as sitting ONLY if the members of each House are respectively assembled together and carrying out the business of the House. 

If Parliament has started to convene concurrently, the power of the Yang di-Pertuan Agong ceases and the legislative power is returned to the Parliament. 

If Parliament have re-convened concurrently, all legislative powers will return to the Parliament even if an emergency is still in effect. 

However, the Parliament can enact an Ordinance to give power to the Yang di-Pertuan Agong to make laws (Privy Council decision in the case of Teh Cheng Poh). 

11) Can the parliament pass laws during emergency?

During an Emergency, the Parliament may make an Ordinance if it finds that the law is required for emergency purposes and legal procedures may be set aside. This law is considered valid even though it is not in line with the Federal Constitution. 

In the case of Mr Keok Cheng, Wylie CJ stated, "The true effect of Article 150 is that, subject to certain exceptions set out therein, Parliament has, during an emergency, power to legislate on any subject and to any effect, even if inconsistencies with articles of the Constitution (including the provisions on fundamental liberties) are involved". 

Clause (2C) of Article 150 states "… the Parliament has the power to make laws, regardless of the legal procedure or other procedures that are required to be followed, or the proportion of the number of votes required to be obtained in any of the Houses of Parliament". 

Also refer to Article 150 (5), which states that the Parliament may make laws without the consent or permission, or without consultation with any party as required by the law. 

The Parliament is not allowed to make an emergency Ordinance on certain things only, i.e. Islamic Law, Malay customs, or law or customs under the State of Sabah and Sarawak. 

The Parliament also cannot make Ordinances that are not in line with the provisions of the Constitution in matters relating to religion, citizenship or language. (See 150(6A)). 

Proclamation of Emergency and the Ordinances made by the Yang di-Pertuan Agong during an Emergency shall be tabled before both Houses of Parliament when both houses sits concurrently. 

12) What's the impact of the Ordinance put into effect by official declaration by the Yang di-Pertuan Agong during emergency?

The Ordinances put into effect by official declaration by the Yang di-Pertuan Agong can be enforced and is effective the same way it would if it were an Act of Parliament. 

It can be effective until it is cancelled. Once Parliament convenes, the Ordinance by the Yang di-Pertuan Agong shall be tabled before both Houses of Parliament. 

The ordinance can be continued if approved, and must be stopped if it is not approved, by the Parliament. 

If the Ordinance is not passed by the Parliament, it does not affect anything that happened before under the enforcement of the Proclamation of Emergency or Ordinance. 

In fact, the disapproval by Parliament does not affect the power of the Yang di-Pertuan Agong to make other Proclamations of Emergency or other Ordinances for other emergency purposes. (The Yang di-Pertuan Agong may make several proclamations at the same time or at different times, for the same reason or for different reasons). 

13) Can Yang di-Pertuan Agong make a Suppy ordinance (budget)?

Looking at the power vested in the Yang di-Pertuan Agong, he may, if necessary and he is satisfied, put an ordinance into effect through official declaration when the two Houses of Parliament are absent or not sitting concurrently, then if he is satisfied and it is necessary to promogulated any expenditure of the country, he may do so. 

However, every Ordinance made by the Yang di-Pertuan Agong must be tabled in both Houses of Parliament when the two convenes concurrently. The ordinance can be unraveled by a resolution made by the Parliament. (See Articles 150(2) and (3)). 

14) When will state of emergency end and who will announce it?

Article 150 does not explicitly mention the annulling of emergency declaration - when or by whom. 

Article 150(3) indirectly states "Emergency declaration and any Ordinance that has been promulgated under Clause (2B)... has to cease to have effect if resolutions are passed by both Houses annulling such Proclamation..."

This underlined phrase indicates that the annulment of a proclamation and emergency laws made by the Yang di-Pertuan Agong can be made through a resolution approved by both Houses of Parliament. 

The Cheng Poh case states,

"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. In their Lordships' view, a proclamation of a new emergency declared to be threatening the security of the Federation as a whole must by necessary implication be intended to operate as a revocation of a previous Proclamation, if one is still in force."

15) What happens to ordinances made during the emergency once emergency ends?

Ordinances made for the purpose of emergency has to be stopped being enforced six months after the emergency has been declared ended.

This means that the Ordinance can still be in effect for six months after the day emergency ends. (Refer to Article 150(7)). 

Phew! That's very technical. But knowledge is power so yay!