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Since March, I have scrupulously adhered to the convention that it is inappropriate for a former public official to comment on the merits or demerits of the policies and decisions made by his successor.
But last night’s announcement that the prime minister asked Yang di-Pertuan Agong to declare a national emergency imposes a responsibility on me not to keep silent. Therefore, with a heavy heart, I think about the legality of the proposed measure.
An Emergency proclamation under Article 150 of the Federal Constitution has tremendous negative consequences on the body politic of the nation and the exercise of the liberties and liberties of our citizens.
Hence the reluctance to rush into it. The shame associated with emergencies led the government in October 2011 to revoke four proclamations that had tarnished our national psyche. The prime minister was then deputy prime minister.
Because the ramifications of an emergency are massive, the constitution has placed many safeguards against its use. The most obvious and frequent abuse occurs when the incumbent prime minister feels threatened as to his safety in office.
Therefore, checks and balances are incorporated in article 150, which has 13 sub-articles within. It is complete code and is the starting point for any discussion.
Article 150 (1) states that if the Agong is convinced that there is a serious emergency where the security or economic life or public order in Malaysia is threatened, it can issue an emergency proclamation.
Malaysia is a constitutional monarchy, and Agong acts on the advice of the prime minister in regards to article 150.
Therefore, the real decision maker is the prime minister, but the King has a residual discretion. In other words, it is not automatic that every time a prime minister wants a proclamation, the Agong must agree to it.
The Agong has the right to seek the advice of the Conference of Governors, or anyone whose advice the Agong values.
But for Article 150 (1) to come into play, the conditions in the country or the circumstances are such that:
(i) there is a serious emergency;
(ii) for which security;
(iii) economic life; or
(iv) public order;
(v) is threatened.
None of these terms is defined in the Constitution. Therefore, they must be given their natural and ordinary meaning. In addition, the framers of the constitution put in place an important safeguard: it is not an emergency, but a “serious” one.
This distinguishes it from an “ordinary” crisis or emergency. It must be of a serious nature, scale or magnitude.
It is difficult to find a single rational argument to support a case that there is a “serious emergency” in Malaysia today for any reason. Covid-19 has been with us since January. When it suits this government, it has bragged about how well they fought and contained the spread of Covid-19.
And they have objective reasons for making this claim, taking into account the performance of other countries. Therefore, on a relative and comparative scale, Malaysia has managed Covid-19 well.
But the government itself cannot then claim that Covid-19 has become so “threatening” overnight that we have a “serious emergency.” However, the terrible Covid-19 is in Sabah, it does not justify the declaration of a national emergency.
Although Covid-19 is the publicly stated reason, none of us are fooled. The real reason is that this prime minister does not trust the Dewan Rakyat to approve the budget of his finance ministry when it is voted in early December.
That would result in a lack of confidence in your government. Then they must resign. Therefore, the real reason is to ensure the survival of the prime minister in office. You reap what you sow. If you assumed power without being elected by the Malaysian people, the same fate awaits you. You cannot stay in power by preventing others from imitating you.
That sums up the alleged emergency case. It is so selfish that constitutionally, the prime minister is in conflict by seeking an Emergency proclamation solely to remain in office. Your private interests are in conflict with your public duty.
Let me briefly consider the three preconditions of Article 150 (1): security, economic life or public order. It is impossible for the prime minister to argue that Malaysia’s security is affected in any way if he continues in office.
Also, public order. That leaves the “economic life.” This precondition does not apply. Note that “health” is not a foundation. This is no surprise. Nations have been affected for centuries by the plague, tuberculosis, the Spanish flu, and other contagious diseases. But they do not justify a national emergency.
Comprehensive public health and sanitation measures can be implemented under the ordinary laws of the country, without resorting to emergency powers. In these circumstances, there are no legal grounds for the proclamation of Emergency in Malaysia today. Therefore, it would be unconstitutional.
Although a revocation clause is found in article 150 (8), taking into account the development of constitutional law in fundamental cases such as Indira Gandhi and Semenyih Jaya, it can certainly be argued that the courts can review a decision to declare emergency.
Almost half a century ago, the Teh Cheng Poh case considered the limits of the executive’s power to declare emergencies. A recent foreign example illustrates the global trend in common law: the UK High Court’s Brexit decision.
In my opinion, an Emergency proclamation in the current circumstances is justiciable in our courts.
A supreme irony is that the prime minister and his finance minister want Parliament to be suspended and the budget enforceable by executive action. Again, this would be unconstitutional because it would violate 3 sub-articles in Article 150 itself. Thus, Article 150 (3) requires that the proclamation be presented before both Houses of Parliament.
More significantly, the proclamation will cease to have effect if both Houses pass a resolution “nullifying said proclamation.” Article 150 (5) establishes that while a proclamation is in force, “Parliament may pass laws if it seems to them that the law is necessary.”
Finally, Article 150 (9) establishes that the Houses of Parliament are to be considered as meeting “only if the members of each House are respectively assembled and conduct the affairs of the House.”
It is clear and obvious that proclaiming an emergency does not have the expected result. Parliament continues to carry out its functions. Therefore, the Dewan Rakyat should sit in the usual way for the important budget session in early November, as scheduled.
One would expect the finance minister, as a former banker, to warn his prime minister of the dire consequences for the economy if an emergency were declared. Rating agencies will immediately downgrade our ratings, which means that borrowing costs will become more expensive and perhaps even more difficult.
The stock market will crash, the ringgit will crash, and business confidence will shatter. All of these predictable consequences would be self-inflicted solely to allow one man to remain prime minister. Therefore, the “economic life” of Malaysia does not require any emergency. Period.
For all these reasons, I implore the prime minister to withdraw this option. Rather, the problem is created by the 222 deputies. Therefore, the solution is in your hands.
If that means that the prime minister and his political opponents have to spend the next week haggling and negotiating to be included in a true unity government, they must do so in a spirit of consensus and compromise.
The people of Malaysia, whom he is supposed to represent, are absolutely disgusted with the current situation. The last thing we want is a national emergency caused solely by the ambitions and greed of politicians.
Tommy Thomas is the former attorney general.
Opinions expressed are those of the authors and do not necessarily reflect those of FMT.
