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.
[1] Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50, at p. 53
[2] See e.g. Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750, at paragraph 546, Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun Yean & Anor [2020] 4 MLJ 581, at paragraph 34, Tony Pua Kiam Wee v Government of Malaysia and another appeal [2019] 12 MLJ 1, at paragraph 88 read together with paragraph 113
[3] See Article 66(5) of the Federal Constitution
Recent Comments