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PETALING JAYA: Constitutional lawyers emphasize that there is no need to place the country under emergency law since the Infectious Diseases Prevention and Control Act (Law 342) already gives the state broad powers.
They said this after Prime Minister Muhyiddin Yassin had an audience with the Yang di-Pertuan Agong in Kuantan today, and the meeting is believed to have been about the use of emergency special powers to curb the growing number of Covid-19 cases. .
Attorney Andrew Khoo said the government has yet to “fully utilize” the full range, scope and powers of all provisions of the Infectious Disease Prevention and Control Act.
Stricter reporting could be applied under Section 10, which could lead to more severe corrective action by the authorities.
Despite the country registering more than 800 cases in five of the past six days, attorney Lim Wei Jiet said the government had no valid reason to declare an emergency.
“By declaring movement controls, Law 342 allows it. By punishing offenders, Law 342 allows it. Border control, the immigration (department) has the power, ”Lim told the FMT.
“So the question arises: Why should we even consider an emergency?
“What else can be done by declaring a state of emergency to address the situation?”
Warning that a national emergency would seriously affect the country’s already ailing economy, Lim said investors would lose confidence in the Malaysian market.
He also said that many commercial contracts could have force majeure clauses that would be activated in an emergency, creating uncertainty between the parties.
(Force majeure means that one of the parties to a contract cannot fulfill its obligations due to unforeseeable circumstances).
‘Use the National Security Council Law’
Khoo, who is also co-chair of the Bar Association’s constitutional law committee, said the government could also use the National Security Council Act and declare “safe areas” rather than declaring an emergency under Article 150 of the Federal Constitution.
“Article 150 allows you to suspend Parliament,” Khoo told the FMT.
“The emergency declaration could be interpreted as an attempt to hinder the work of Parliament and not have the Budget presented, debated and voted on.
Remember what Prime Minister (Prime Minister) Boris Johnson tried to do in the UK last year because of Brexit by trying to prorogue Parliament? This was declared illegal by the courts.
“If the budget is defeated, the prime minister must resign.”
“If you declare an emergency, you can pass the budget through an emergency ordinance, without the need to vote.”
The 2021 budget will be presented on November 6.
Meanwhile, retired judge Gopal Sri Ram said that under Article 40 (1) of the Federal Constitution, the Yang di-Pertuan Agong has an obligation to act on the advice of the prime minister, the cabinet or a minister.
He said that on the advice of the prime minister, the King should declare a state of emergency.
“However, the advice given by the prime minister can be judicially reviewed,” he warned.
Sri Ram said that there were three types of emergencies: a total curfew as declared in 1969 (during the deadly race riots) to preserve public order; a limited curfew in which social activities will be restricted during certain hours; and one in which there would be no movement restrictions (or limited restrictions) but with Parliament suspended for a specified period.
Lim agreed with Sri Ram and stated that article 150 should be read with article 40.
“If the government sells the narrative that the emergency declaration is a decision by Yang di-Pertuan Agong, don’t buy it,” Lim said.
“Some people may say that the King himself makes the final decision, but you need to read Article 150 with Article 40, which says that any decision made by the King must be made in accordance with the advice of the prime minister.
“At the end of the day, the prime minister has to make the decision and he has to be fully responsible for it.”
