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Article 150 (3) of the Federal Constitution
Vice President Azalina Othman Said had said that she found that Article 150 (8) of the Federal Constitution establishes that Yang di-Pertuan Agong’s satisfaction regarding the existence of a serious emergency is final and conclusive, and should not be contested. nor call to question in any court or on any ground.
However, it has not taken into account that it is a mandatory requirement under article 150 (3) of the Federal Constitution that the emergency proclamation and the emergency Ordinance 2021 be presented before both Houses of Parliament. Both Chambers have expressly granted powers under the Federal Constitution to pass resolutions that annul said proclamation and ordinance.
Therefore, the request to convene a session of Parliament in order for the proclamation and ordinance to be presented is part of the constitutional scheme for an emergency.
Article 150 (8) does not apply because the session of Parliament is not an appeal to a court.
In fact, the constitutional scheme provides for Parliament to meet and enact laws for the duration of an emergency. Article 150 (5) provides that while an emergency proclamation is in force, Parliament may enact laws regarding any matter, if Parliament considers the law necessary due to the emergency.
Parliament has held sessions during the existence of various emergencies. There is a misconception that every time an emergency is declared, Parliament is extended or dissolved. This is not correct.
Professor Shad Saleem Faruqi has pointed out that when the Sarawak emergency was declared, Parliament was summoned to meet three days later.
When the Kelantan emergency was declared in 1977, Parliament was in session. In 1969, Parliament was dissolved for general elections and reconvened in 1971. Shad Saleem said that since 1964, the country has been under a constant state of emergency.
However, Parliament continued as usual. The constitutional scheme establishes that either in normal times or in a period of emergency, Parliament must continue to carry out its constitutional function.
Article 150 (8)
Article 150 (8) is a revocation clause. This article was inserted as part of several amendments to article 150 under the Constitution (Amendment) Act 1981 (Act A514). An expulsion is invalid and unconstitutional if it violates the basic structure of the constitution. The Federal Constitution is a model Westminster constitution that is based on the system of parliamentary democracy.
There are at least three essential elements that form the basic structure of a Westminster model constitution. They are the doctrine of the separation of powers, the rule of law and an independent judiciary.
The Federal Court has accepted the doctrine of basic structure in cases such as Sivarasa Rasiah v. Badan Peguam Malaysia (2010) and Indira Gandhi v. Director of Islamic Affairs Perak (2018). The Federal Court in the Indira Gandhi case issued, among others, the following rulings:
to. That the principle of separation of powers is part of the basic structure of the Federal Constitution;
second. The power of judicial review is an essential feature of the basic structure of the Constitution;
C. The characteristics of the basic structure of the Constitution cannot be abrogated by Parliament through constitutional amendments;
re. The competence of the Judiciary is to ensure that the legality of the Executive’s action is consistent with its constitutional role in a framework based on the separation of powers that makes up the basic structure of the Constitution. Any attempt by Parliament to remove or exclude the power of judicial review is ineffective. It follows that the dismissal clauses are unconstitutional and void.
The Federal Court, in the recent decision of Maria Chin Abdullah against Ketua Pengarah Imigresen (2021), held that the dismissal clause in that case was valid. However, in light of previous Federal Court rulings, the constitutionality of Article 150 (8) is not a foregone conclusion.
The role of parliament
Azalina, by refusing to convene a session of Parliament, offered alternatives such as the formation of a bipartisan council and that the rakyat take their complaints to the ministers of the Umno.
It is regrettable that it did not take into account the important role that Parliament must play in the fight against the pandemic and the economic crisis.
Any government order, policy or program in the fight against Covid-19 that does not come under the scrutiny of Parliament and obtain the required approval does not enjoy the legitimacy and public acceptance required for its successful implementation.
When the rules don’t benefit people personally, they look at who was included or excluded, whether there was due diligence, transparency, or accountability.
For Covid-19 compliance, people can accept decisions that go against their personal interests, the loss of their livelihoods and freedom, if they believe that the decision-making and regulation process is fair. If not, there will be those who break the rules or disobey them in the hope that they won’t get caught.
The app is not a sustainable solution. The number of people arrested, summoned and fined has increased, but the number of people who tested positive has multiplied and exploded. Fear, coercion, police enforcement, arrests, and fines are neither sustainable nor effective impediments.
The initial fear that arose with the first motion control order (MCO) in March last year has subsided as people went ahead and “balik kampung” as well as brought their family to “cuti-cuti Malaysia” without thinking about the large number of daily infections.
Coupled with poor leadership as ministers and politicians breached standard operating procedures (SOPs) or were granted exemptions from citations and fines, the situation went from a period of 11 days without a positive case reported to the current record 4,029 cases per year. day.
The MCO, whether under the Infectious Disease Prevention and Control Act of 1988 or under the Emergency Ordinance, relies on people to comply even if it is against their personal interests.
Whether the government succeeds or fails in controlling the Covid-19 pandemic ultimately depends on whether people perceive the rules and standard operating procedures as legitimate.
Parliament helps give legitimacy to emergency regulations because the debate takes place in public and people can hear its justifications. Parliamentary oversight is designed to prevent inappropriate or disproportionate use of emergency regulations that should be established as soon as reasonably possible.
It also improves the effectiveness of legislation by giving interested parties the opportunity to identify problems in the legislation and pressure parliamentarians to seek changes in them.
Parliament grants legitimacy in the exercise of its function through debates to ensure that the public health emergency does not authorize the government to set aside its obligations to defend fundamental rights and freedoms over the burdens imposed by the regulations, such as loss of personal freedom, income, privacy, discrimination, stigma and stress.
Parliament guarantees through debates and questions to the ministers for public consumption that the severity, duration and scope of the emergency measure is strictly necessary for the threat to public health and proportionate to its nature and scope.
Emergency regulations should not be used as a cover for repressive actions or corrupt practices.
Purchasing medical supplies and resources, from personal protective equipment to vaccines, may be too tempting for some without oversight from Parliament.
Parliament has an important role to play in the fight against Covid-19. It provides the oversight and legitimacy necessary for public acceptance and compliance.
If there is no legitimacy, after this MCO 2.0, we will have MCO 3.0, MCO 4.0 and ad infinitum, as well as an endless state of emergency.
William Leong Jee Keen is the MP for Selayang.
The opinions expressed are those of the author and do not necessarily reflect those of FMT.
