by Joshua Wu Kai-Ming | Oct 5, 2021 | Law
With the Malacca State Legislative Assembly having been dissolved, snap polls will be held in the state.[1]
A question has arisen whether state elections can be conducted during the period the emergency ordinances remain in force (“the Question”).
The Question is a valid one as the Emergency (Essential Powers) Ordinance 2021 contains provisions relevant to State Legislative Assemblies.[2]
Since the emergency ordinances were not properly revoked,[3] the emergency ordinances have effect for six months after the Proclamation of Emergency ceases to be in force.
Article 150(7) of the Federal Constitution states:
“At the expiration of a period of six months beginning with the date on which a Proclamation of Emergency ceases to be in force, any ordinance promulgated in pursuance of the Proclamation and, to the extent that it could not have been validly made but for this Article, any law made while the Proclamation was in force, shall cease to have effect, except as to things done or omitted to be done before the expiration of that period.” (Emphasis mine)
The Proclamation of Emergency only ceased to be in force on 2nd August 2021,[4] hence the emergency ordinances promulgated pursuant to the Proclamation will remain in force until 6th February 2022.
Section 13 of the Emergency (Essential Powers) Ordinance 2021 provides the following:
“For so long as the emergency is in force –
(a) the provision relating to an election for the election to a State Legislative Assembly in the Eighth Schedule to the Federal Constitution, Constitution of any State and any State Law shall have no effect; and
(b) an election for the election to the State Legislative Assembly shall be held on a date as the Yang di-Pertuan Agong thinks appropriate after consultation with the respective Ruler or the Yang di-Pertua Negeri.” (Emphasis mine)
Section 13 of the Emergency (Essential Powers) Ordinance 2021 is clearly contingent on the emergency still being in force.
Since the emergency ceased to be in force with effect from 2nd August 2021, the answer to the Question should be in the affirmative notwithstanding the fact the Emergency (Essential Powers) Ordinance 2021 continues to have effect.
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by Joshua Wu Kai-Ming | Aug 3, 2021 | Law
In Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50 (“Teh Cheng Poh”), the Privy Council held the following:
“The power to revoke, however, like the power to issue a proclamation of emergency, vests in the Yang di-Pertuan Agong, and the Constitution does not require it to be exercised by any formal instrument.”[1] (emphasis mine)
Strictly speaking, the Privy Council is correct in pointing out that the Federal Constitution does not prescribe the use of any formal instrument for the revocation of a proclamation of emergency.
Similarly, the Federal Constitution does not prescribe the use of any formal instrument for the revocation of any ordinance promulgated pursuant to such a proclamation.
This would be in contrast to the annulment of a proclamation of emergency (and ordinance promulgated pursuant to such a proclamation) by Parliament.
Article 150(3) of the Federal Constitution prescribes resolutions passed by Parliament as the formal instrument to be used, in relation to annulments:
“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)
In the absence of a prescription in the Federal Constitution on the method of revoking a proclamation of emergency and/or the ordinances promulgated pursuant to such a proclamation, the relevant provision(s) in the Interpretation Acts 1948 and 1967 (if any) would be applicable.
The Malaysian superior courts have consistently recognised that the provisions of the Interpretation Acts 1948 and 1967 apply even to the Federal Constitution, by virtue of Sections 3 and 66 of the Act.[2]
The Ordinances
According to Article 150(2C) of the Federal Constitution, an ordinance promulgated under Article 150(2B) has the same force and effect as an Act of Parliament.
Interestingly, the Interpretation Acts 1948 and 1967 are silent on whether Acts of Parliament have to be published in the Gazette.
Section 18(1)(a) of the Interpretation Acts 1948 and 1967 merely groups Acts of Parliament and ordinances promulgated by the Yang di-Pertuan Agong in a specific part of the Gazette:
“(1) The Gazette shall be published in parts as follows:
(a) a part to be known as the Acts Supplement which shall be published as and when necessary and which shall contain all Acts of Parliament and all Ordinances promulgated by the Yang di-Pertuan Agong;” (emphasis mine)
However, ordinarily, a Bill that has been passed by both Houses of Parliament and received the royal assent will become law. However, it will not have effect until it has been published in the Gazette.[3]
Since an emergency ordinance has the same force and effect as an Act of Parliament, it would be reasonable to infer that the revocation of an emergency ordinance also requires publication in the Gazette before it has any effect.
The Proclamation
The Federal Constitution, unlike in the case of emergency ordinances, does not state whether a proclamation of emergency has the same force and effect as an Act of Parliament.
In the event a proclamation of emergency is a primary legislation, the manner of revoking it would be similar to that of emergency ordinances and likely require publication in the Gazette.
In the event a proclamation of emergency is a delegated/subsidiary legislation, rather than primary legislation, Sections 86 and 18(1)(b) of the Interpretation Acts 1948 and 1967 would be relevant.
Section 86(1) of the Interpretation Acts 1948 and 1967 provides that:
“Subsidiary legislation made under any Act of Parliament, Ordinance, Enactment or other lawful authority shall, unless it be otherwise expressly provided in any Act of Parliament, Ordinance, be published in the Gazette and, unless it be otherwise provided in such subsidiary legislation, shall take effect and come into operation as law on the date of such publication.” (emphasis mine)
Additionally, Sections 18(1)(b) of the Interpretation Acts 1948 and 1967 groups Royal Proclamations together with delegated/subsidiary legislation in the Gazette:
“(1) The Gazette shall be published in parts as follows:
…
(b) a part to be known as the Legislative Supplement A which shall be published as and when necessary and which shall contain all Royal Proclamations, orders, rules, regulations and by-laws;” (emphasis mine)
In light of Sections 86 and 18(1)(b) of the Interpretation Acts 1948 and 1967, it can be argued that, as a general rule, a revocation order in relation to a proclamation of emergency has to be published in the Gazette.
Regrettably, the Privy Council’s decision in Teh Cheng Poh lacks any discussion on the possible application of Sections 86 and 18(1)(b) of the Interpretation Acts 1948 and 1967 even though both provisions were in force at the time the case was before the Privy Council.
Hence, the Privy Council’s observations vis-a-vis the formal method (or lack thereof) for the revocation of a proclamation of emergency should be treated with caution in light of the possible applications of Sections 86 and 18(1)(b) of the Interpretation Acts 1948 and 1967.
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by Joshua Wu Kai-Ming | Jul 27, 2021 | Law
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]
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by Joshua Wu Kai-Ming | Jul 6, 2021 | Law
The Prime Minister’s Department has released a media statement announcing that the Government has agreed to advise the Yang di-Pertuan Agong (“YDPA”) to summon Parliament.[1]
The lower house of Parliament (Dewan Rakyat) is scheduled to sit for 5 days from 26th July 2021 to 29th July 2021, and 2nd August 2021, while the upper house of Parliament (Dewan Negara) is scheduled to sit for 3 days from 3rd August 2021 to 5th August 2021.
Pursuant to Article 150(3) of the Federal Constitution, the Proclamation of Emergency and ordinances made pursuant to the Proclamation will be laid before both Houses of Parliament.
The ordinances which have been promulgated by the YDPA thus far, include the following:
i. Emergency (Essential Powers) Ordinance 2021;[2]
ii. Emergency (Essential Powers) (No. 2) Ordinance 2021;[3] and
iii. Emergency (Essential Powers) (Amendment) Ordinance 2021.[4]
What could happen to the Proclamation and/or ordinances?
Article 150(3) of the Federal Constitution empowers Parliament to annul the Proclamation and/or the ordinances.
However, Parliament’s powers to annul the Proclamation of Emergency is inconsequential with the Emergency scheduled to only last until 1st August 2021.[5]
By the time any annulment resolution is tabled, debated, and passed, the Proclamation of Emergency would have ceased to be in force (presuming there is no extension to the current Proclamation or the issuance of a new Proclamation).
The ordinances, however, as a general rule, will only cease to have effect six months after the Proclamation of Emergency ceases to be in force.[6]
Parliament could, during the upcoming sitting, annul the ordinances made and the ordinances would cease to have effect sooner than the six months general rule.[7]
Further ordinances?
The ordinances which have been promulgated thus far have been promulgated by the YDPA since both Houses of Parliament are/were not sitting concurrently.[8]
In the upcoming parliamentary sitting, strictly speaking, the Dewan Rakyat and Dewan Negara are not sitting concurrently (i.e. at the same time).[9]
This would mean that, in theory, one could argue that the YDPA could still promulgate ordinances even while the upcoming parliamentary sitting is underway.
However, in view of our constitutional structure, the YDPA (as a constitutional monarch) would not likely do so.
Additionally, historically, the Dewan Rakyat and Dewan Negara rarely sit concurrently. In reality, the Dewan Negara almost always has its sitting after the Dewan Rakyat.
In view of the above, there will unlikely be any further ordinances promulgated once the Dewan Rakyat begins its sitting on 26th July 2021.
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by Joshua Wu Kai-Ming | Jun 22, 2021 | Law, Politics
Constitutionally, unless sooner dissolved, state legislative assemblies will be dissolved five years from its first sitting.[1]
Since the Sarawak State Legislative Assembly had its first sitting on 7th June 2016,[2] the state legislative assembly should have been dissolved (at the latest) by June 2021 and state elections be called within 60 days from the date of the dissolution.[3]
As a result of the nationwide Proclamation of Emergency issued on 11th January 2021[4] and the Emergency (Essential Powers) Ordinance 2021, the “provisions relating to an election for the election to a State Legislative Assembly …, Constitution of any State and any State Law [has] effect.”[5]
This means that the constitutional necessity for the Sarawak state elections to be held is temporarily suspended[6] until either the Emergency is no longer in force or the Yang di-Pertuan Agong sets a state election date after consultation with the Yang di-Pertua Negeri of Sarawak.[7]
At the present moment, the Emergency is scheduled to cease after 1st August 2021[8] and the Malay Rulers have stated that “there is no necessity to place the country under a state of emergency after Aug 1, 2021.”[9]
Tan Sri Datuk Amar Dr. James Jemut Masing, the Deputy Chief Minister of Sarawak, has voiced his concerns that the Sarawak state elections have to be conducted once the Emergency comes to an end.[10]
At this juncture, such concerns are perfectly valid as the Sabah state elections had catastrophic effects on COVID-19 cases in the state.
As admitted by Tan Sri Dato Seri Haji Mahiaddin Bin Haji Md Yassin, the current Prime Minister of Malaysia,[11] and supported by researches which have been conducted,[12] the Sabah state elections resulted in a third wave of COVID-19 infections in the country.
One option to further defer the Sarawak state elections would be by way of a statewide Proclamation of Emergency.
If what happened in Sabah were projected/predicted to happen to Sarawak as a result of the Sarawak state elections, this would be a “grave emergency … whereby the security, or the economic life, or public order in … [Sarawak] is threatened.”[13]
Precedents for a statewide Proclamation of Emergency exist. In the past, statewide Emergencies were declared in Sarawak[14] and in Kelantan[15] due to political instability.
Prior to the nationwide Emergency, the Yang di-Pertuan Agong also issued a Proclamation of Emergency over the parliamentary constituency of Batu Sapi resulting in a postponement of a by-election due to a casual vacancy.[16]
As of 21st June 2021, only 29.89% of the population of Sarawak has been vaccinated.[17]
A further Emergency in Sarawak would enable the health authorities to continue their vaccination efforts and potentially achieve herd immunity (or full vaccination)[18] before the Sarawak state elections are held.
The Election Commission would also be able to use the time to refine its standard operating procedures for elections conducted in the midst of the pandemic.
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