Mr. Hassan bin Abdul Karim, the Member of Parliament for the Pasir Gudang parliamentary constituency, has argued that the suspension of Parliament “… is illegal and unconstitutional. It must be challenged and oppose.”[1]
With all due respect to my learned friend, his contention is misplaced.
Article 150(2B) of the Federal Constitution provides as follows:
“If at any time while a Proclamation of Emergency is in operation, except when both Houses of Parliament are sitting concurrently, the Yang di-Pertuan Agong is satisfied that certain circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as circumstances appear to him to require.” (emphasis mine)
At the moment, neither the House of Representatives (also known as the Dewan Rakyat) nor the Senate (also known as the Dewan Negara) are sitting.
The former’s previous sitting ended on 17th December 2020[2] while the latter’s previous sitting ended on 30th December 2020.[3]
The latter’s next sitting was scheduled to be held on 8th March 2021 – 8th April 2021[4] and the former’s next sitting was scheduled to be held for one day on 8th March 2021 before continuing on 14th April 2021 – 28th April 2021.[5]
In light of the above, as at the time of writing, it can be concluded that both Houses of Parliament are not sitting concurrently.
Therefore, in view of the Proclamation of Emergency which was published in the Federal Gazette on 12th January 2021,[6] pursuant to Article 150(2B) above, the Yang di-Pertuan Agong (“YDPA“) is constitutionally empowered to “promulgate such ordinances as circumstances appear to him to require.”
This would include an ordinance which provides for the suspension of Parliament, which was in fact done in Clause 14 of the Emergency (Essential Powers) Ordinance 2021.
Article 150(6) of the Federal Constitution provides that, as a general rule:
“… no provision of any ordinance promulgated under this Article, and no provision of any Act of Parliament which is passed while a Proclamation of Emergency is in force and which declares that the law appears to Parliament to be required by reason of the emergency, shall be invalid on the ground of inconsistency with any provision of this Constitution.” (emphasis mine)
This means that constitutionally, the YDPA can promulgate ordinances which are inconsistent with other provisions in the Federal Constitution. If the YDPA does so, such ordinances will not be invalid.
As such, even if Mr. Hassan bin Abdul Karim were to mount a legal challenge against Clause 14 of the Emergency (Essential Powers) Ordinance 2021, it appears unlikely that the Courts would declare the Clause invalid/unconstitutional.
The Federal Constitution goes even further, in Article 150(8)(b)(iii), to provide that “no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of … any ordinance promulgated under Clause (2B).”
The Federal Constitution expressly ousts the jurisdiction of the Courts to determine the validity of any ordinance promulgated under Clause (2B), which would include the Emergency (Essential Powers) Ordinance 2021.
On the face of it, Mr. Hassan bin Abdul Karim’s intended legal challenge will be destined to fail unless the Courts first strike down Article 150(8)(b)(iii) of the Federal Constitution (for example, for being incompatible with the basic structure of the Federal Constitution).
Editor’s Note: This article also appeared on The Malaysian Insight
[1] Ben Tan, “PKR MP to challenge suspension of Parliament, claims it is unconstitutional.” MalayMail.com. Malay Mail. Accessed January 15, 2021. https://www.malaymail.com/news/malaysia/2021/01/15/pkr-mp-to-challenge-suspension-of-parliament-claims-it-is-unconstitutional/1940593
[2] “Dewan Rakyat adjourns after sitting for 29 days since Nov 2, 10 Bills passed.” MalayMail.com. Malay Mail. Accessed January 15, 2021. https://www.malaymail.com/news/malaysia/2020/12/17/dewan-rakyat-adjourns-after-sitting-for-29-days-since-nov-2-10-bills-passed/1932898
[3] https://www.parlimen.gov.my/images/webuser/bkk/3)%20H.Metro%2030%20Dec.jpg
%20H.Metro%2030%20Dec.jpg){kind=link}
[4] “House of Representatives Calendar.” Parlimen.gov.my. The Official Portal of Parliament of Malaysia. Accessed January 15, 2021. https://www.parlimen.gov.my/takwim-dewan-rakyat.html?uweb=dr&lang=en
[5] “Senate Calendar.” Parlimen.gov.my. The Official Portal of Parliament of Malaysia. Accessed January 15, 2021. https://www.parlimen.gov.my/takwim-dewan-negara.html?uweb=dn
[6] “Emergency (Essential Powers) Ordinance 2021.” FederalGazette.agc.gov.my. Federal Gazette. Accessed January 15, 2021. http://www.federalgazette.agc.gov.my/outputp/pua_20210112_PUA%207.pdf
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