During the House of Representatives’ (Dewan Rakyat) sitting on 26th July 2021, Datuk Seri Takiyuddin bin Hassan dropped a bombshell that all six ordinances made pursuant to the Proclamation of Emergency (“the Ordinances”) have been revoked with effect from 21st July 2021.[1]
The Ordinances
Even if the Ordinances have been revoked, constitutionally, the Ordinances still have to be laid before Parliament pursuant to Article 150(3) of the Federal Constitution:[2]
“A Proclamation of Emergency and any ordinance promulgated under Clause (2B) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance, but without prejudice to anything previously done by virtue thereof or to the power of the Yang di-Pertuan Agong to issue a new Proclamation under Clause (1) or promulgate any ordinance under Clause (2B).” (emphasis mine)
The only effect of the revocation is that the Ordinances will cease to have effect and any resolutions to annul the Ordinances would be redundant/academic as the Ordinances no longer have effect.
However, at the time of writing, checks on the Federal Government Gazette’s website reveal that no such revocation order has been gazetted.[3]
In the event there is/exists a revocation order but it has not been gazetted, the revocation order would not have the force of law.[4]
Assuming it is true that there is a revocation order and it has been gazetted, it is unclear whether:
i. the Ordinances have been revoked with effect from 21st July 2021 (as per Datuk Seri Takiyuddin’s claim); or
ii. the date of the revocation order or the date it was gazetted is 21st July 2021 but the revocation is to take effect before/on/after 1st August 2021.[5]
One can only be sure after examining the wordings of the revocation order.
Additionally, the revocation of the Ordinances (without prior notice via publication in the Federal Gazette) could result in scenarios whereby individuals are summoned, compounded, and/or charged between 21st July 2021 and 1st August 2021 for “offences” created pursuant to the Ordinances when no such “offence” exists.[6]
An example would the offence of “creating, offering, publishing, etc., fake news or publication containing fake news,” which came about as a result of Section 4 of the Emergency (Essential Powers) (No. 2) Ordinance 2021.[7]
The Proclamation
The issue is whether the Proclamation of Emergency, issued on 11th January 2021 (“the Proclamation”),[8] has been revoked.
If it has not, and even if it were true that the Ordinances have been revoked, the Proclamation would still have to be laid before Parliament and members of the Dewan Rakyat can introduce a resolution for its annulment.
The Federal Opposition, via Dato Seri Anwar bin Ibrahim & Ngeh Koo Ham, have in fact done so.[9]
Their resolution for the annulment of the Proclamation should be given priority, and be debated and voted upon.
However, an inspection of the Dewan Rakyat’s calendar for the present parliamentary sitting reveals that the special sitting is held for the relevant Ministers to provide explanations to Members of Parliament about the National Recovery Plan.[10]
There appears to be no room for the tabling, debate, and voting of a resolution to annul the Proclamation.
If the Proclamation has been revoked, then Malaysia is no longer under a state of emergency and the emergency came to an end on the date of the revocation order (or the date stipulated therein).
Notwithstanding this, pursuant to Article 150(3) of the Federal Constitution, the Proclamation would still have to be laid before Parliament.
Editor’s Note: This article also appeared on The Malaysian Insight
[1] Kaur, Minderjeet. “All emergency ordinances revoked on July 21, no emergency extension.” 26 July 2021. https://www.freemalaysiatoday.com/category/nation/2021/07/26/all-emergency-ordinances-revoked-no-emergency-extension-says-takiyuddin/.
[2] The use of the word “shall” in Article 150(3) denotes a mandatory requirement. See e.g. Wu Kai-Ming, Joshua. “Dato Sri Ismail Sabri & the Interim Prime Minister Role.” 13 July 2021. https://joshuawu.my/dato-sri-ismail-sabri-the-interim-prime-minister-role/; see also Hassan, Hafiz. “The Emergency is expiring and Emergency Ordinances will cease to have force of law — Hafiz Hassan.” 29 June 2021. https://www.malaymail.com/news/what-you-think/2021/06/29/the-emergency-is-expiring-and-emergency-ordinances-will-cease-to-have-force/1985723.
[3] Federal Legislation. https://lom.agc.gov.my/subsid.php?type=pua
[4] See Section 86(1) of the Interpretation Acts 1948 and 1967, read together with Sections 18(1) and 18(2) of the Interpretation Acts 1948 and 1967
[5] Revocation orders can apply retrospectively or prospectively. See Section 86(2) of the Interpretation Acts 1948 and 1967. An example of a revocation order applying retrospectively is the Revocation of Order Under Section 5 [P.U. (A) 10/2013] [https://lom.agc.gov.my/act-view.php?type=pua&lang=BI&no=P.U.%20(A)%20102/2013]
[6] See e.g. Lim, Ida. “Can the police still issue up to RM10,000 compounds under ‘revoked’ Emergency Ordinances? Lawyers explain.” 26 July 2021. https://www.malaymail.com/news/malaysia/2021/07/27/can-the-police-still-issue-up-to-rm10000-compounds-under-revoked-emergency/1992909.
[7] National Security Council. “Emergency (Essential Powers) (No. 2) Ordinance 2021” P.U. (A) 110/2021. 12 January 2021. https://asset.mkn.gov.my/web/wp-content/uploads/sites/3/2021/03/Ordinan-Anti-Berita-Tidak-Benar-20211.pdf.
[8] Attorney General’s Chambers. “Proclamation of Emergency.” P.U. (A) 7/2021. 12 January 2021. https://lom.agc.gov.my/ilims/upload/portal/akta/outputp/pua_20210112_PUA%207.pdf.
[9] Tong, Geraldine. “Special Parliament sitting: MPs demand voting, speaker blows his top.” 26 July 2021. https://malaysia.news.yahoo.com/special-parliament-sitting-mps-demand-050400428.html.
[10] Prime Minister’s Office of Malaysia. “Kenyataan Media Berkaitan Mesyuarat Khas Penggal Ketiga Parlimen Keempat Belas” 5 July 2021. https://www.pmo.gov.my/2021/07/kenyataan-media-berkaitan-mesyuarat-khas-penggal-ketiga-parlimen-keempat-belas/
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