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MODERN Democratic constitutions provide for a declaration of a state of emergency to meet the demands of a serious threat to a nation.
These provisions are intended for the government to respond effectively when security, economic life and public order are threatened.
Citizens expect that there will be an objective assessment of the circumstances that exist or are an imminent threat to security, economic life and / or public order for such a declaration to be made and for the suspension of the norms of democracy.
Emergency measures that may follow a proclamation are expected to have a temporary duration before the restoration of democratic governance.
In all democracies, the will of the people is expressed through the legislative assembly.
The doctrine of parliamentary sovereignty reflects this.
In Malaysia, we have a written Constitution, which is the supreme law of the federation.
Where does sovereignty reside in a modern state? In pre-modern monarchies, the king as ruler is sovereign.
In an ancient maxim: “The person of the king is sovereign”, by law it is made up of two bodies, a natural body, subject to childhood, illness, disease and death, and a body politic, perfect, powerful and perpetual.
The now published emergency proclamation PU (A) 7/2021 states that the emergency begins on January 11, 2021 and ends on August 1, 2021.
The suspension and cancellation of the session of Parliament and the state legislative assembly.
The Emergency (Essential Powers) Ordinance 2021; PU (A) 12/2021, articles 14 and 15 establish that while the emergency lasts, all the provisions related to the convocation, extension of the dissolution of these august bodies will not take effect and any meeting that has been called but has not been held. is cancelled.
The cancellation of scheduled sessions of both the federal legislature (Parliament) and state assemblies has raised concerns.
Both instruments are promulgated by virtue of article 150 of the Federal Constitution.
It is significant that article 150 expressly states that both an emergency proclamation and any ordinance that has been promulgated pursuant to clause 2 (B) of article 150 “shall be presented before both Houses of Parliament.” The language is required.
It is also interesting that the draft Constitution (Article 138) established that “if Parliament is not in session, it will be the duty of Yang di-Pertuan Besar to convene Parliament as soon as possible.”
In addition, again from the Draft Constitution, Article 13 (8) (3) establishes that a Proclamation will cease to operate after the expiration of two months from the date of its issuance unless Parliament decides on an extension.
As for the ordinances, they will be presented before Parliament and will cease to function within a period of 15 days from the Houses of Parliament.
It is regretted that these robust provisions have not been included in the Federal Constitution.
However, there is clear textual support that an Emergency Proclamation and Ordinance passed under section 150 is subject to the jurisdiction of Parliament.
It cannot be that an instrument of law that has its validity from article 150 can by itself deny the body that ordered its promulgation.
The Federal Constitution, the supreme law of our beloved nation, has the power to extend or revoke and annul such laws, that is, Parliament cannot be suspended or canceled in its session when it is part of the basic structure of the supervisory authority. About the executive. powers.
The Yang di-Pertuan Agong granted an audience to Tan Sri Rais Yatim, the chairman of Dewan Negara (the Senate) and Datuk Azahar Azizan B. Harun, the chairman of Dewan Rakyat (the House of Representatives) on February 24.
The palace then issued a statement with a strong assertion, “that Malaysia as a nation practices a system of democracy that is based on the principle of the Supremacy of the Constitution.”
His Majesty orders that the administration of the government involve not exclusively the Executive, but also the Judiciary and Parliament.
His Majesty stated and opined that there may be a session of Parliament despite an emergency proclamation on a date that His Majesty deems appropriate on the advice of the Prime Minister.
His Majesty’s statement is wise and insightful.
This palace declaration should be well received by all concerned citizens.
Historically, the experience of emergency declarations has been the subject of questioning.
Carl Schmidt, a German jurist during the decline of the Weimar constitutional order, wrote scathingly about what he called the state of emergency.
The Schmittian question: “Who is then a sovereign in a modern state? Tell me who makes the final decision in a crisis; then I’ll tell you who the sovereign is ”has shed light on the actual politics of an emergency declaration.
In Malaysia’s democracy, the sovereign will of its people is expressed through the ballot box and the elected legislature.
The Federal Constitution, within its provisions for the declaration of an emergency, contained clear provisions for the temporary duration of said proclamation and ordinances.
The legal and political legitimacy of a government and its laws is through the elected assembly.
The sooner Parliament is called to continue the state of emergency or to revoke or annul it along with any ordinance, the better for the stability of the nation.
His Majesty has expressed the same commitment regarding Keluhuran Perlembagaan.
At the intersection between law and politics, we also express the maxim: Quare siletis juristae in munere vestro? (Why are jurists silent on what concerns them?)
We await the response of the Executive to the wise affirmation of His Majesty.
Philip TN Koh is a lawyer and a lawyer for the High Court of Malaya.
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