Sabah Lawyers Express Concern Over Emergency Intentions

By ROGER CHIN
COMMENT: The Sabah Law Society (“SLS”) is alarmed by reports that there is an intention to procure a declaration of a state of emergency.  Under Article 150 of the Federal Constitution (“FC”), a Proclamation of Emergency may only be issued by the Yang di-Pertuan Agong (“YDPA”).

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.

A Proclamation of Emergency is to be issued only where there is a grave emergency whereby the security, economic life or public order in the Federation or any part thereof is threatened.  The SLS is of the view that, to the best of its knowledge, no such grave emergency or threat of grave emergency exists.

The implications of an emergency are extremely far reaching, the power to pass legislation as an Act of Parliament without going through the ordinary process of law making with check and balance thus denying debate means there would be no oversight over these laws. In addition, such laws need not be in accordance with the provisions of the Federal Constitution. For these very reasons, two pillars of Government, namely the Judiciary and Parliament would be rendered impotent and the democratic structure would be compromised with a concentration of power in the hands of the executive.

Furthermore, a state of emergency permits directives to be given and laws to be made which encroach onto State matters. 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. Such laws would affect States as these would not have been passed by the State Legislative Assembly and Members duly elected by the people of the State.

The argument may be made that the YDPA is duty-bound to act on the advice of the Cabinet, given the provisions of Article 40(1) FC.  The SLS however disagrees with this position, as Article 150 FC makes specific reference to the requirement that the YDPA be satisfied that a grave emergency or threat of grave emergency exists.

The SLS is in complete agreement with the YDPA’s advice  to Malaysian politicians to reflect on their actions and not drag the nation into uncertainty.  Their focus should instead be on the well-being of the people.  The SLS stresses that the situation is especially urgent as Article 150(8)(b) FC states that the Courts shall have no jurisdiction to entertain any application relating to the validity of a Proclamation of Emergency.

The Covid-19 pandemic is indeed a crisis, and the present times have been described as unprecedented.  Nowhere has this been felt more than Sabah, with its record-breaking numbers of daily infections.  However, there are already sufficient laws and measures in place to deal with the same.  The “Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020” has recently come into force to ameliorate the economic impact of Covid-19.  The “Prevention and Control of Infectious Diseases Act” was enacted precisely to deal with infectious diseases.  The Covid-19 pandemic does not represent an emergency as envisaged by Article 150 FC.  None of the special powers as stated in Article 150 are required in order to deal with the situation.

The SLS maintains its faith in the health authorities and medical personnel who are working tirelessly to safeguard the health of all Malaysians.  The SLS calls on all citizens to abide with directions and procedures issued by the health authorities.  The SLS calls on politicians to focus their efforts on supporting the health authorities.  The SLS decries any moves that erode or risk eroding confidence in public institutions any further.

Finally, in view of this, the SLS appeals to and urges the YDPA not to issue any Proclamation of Emergency.

*Roger Chin is the President of Sabah Law Society