Speculation is rife that a proclamation of emergency may be on its way.[1]
Pursuant to Article 150(1) of the Federal Constitution, “If the Yang di-Pertuan Agong [“YDPA”] is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.”[2] (emphasis mine)
In the past, amongst others, the YDPA issued a Proclamation of Emergency:
i. in 1966, in the state of Sarawak, due to political instability;[3]
ii. in 1969, nationwide, due to the 13 May 1969 racial riots;[4] and
iii. in 1977, in the state of Kelantan, due to political instability.[5]
Interestingly, all three Proclamations of Emergency were only repealed in 2011.[6]
Presently, the following are undisputed:
a. The current government holds a very slim majority in Parliament;[7]
b. There is ongoing political instability;[8] and
c. The Supply Bill 2021 has to be tabled in Parliament soon.[9]
If Tan Sri Muhyiddin bin Yassin (“TSMY”) does not table the Supply Bill 2021, there will likely be a government shutdown.[10]
If TSMY tables the Supply Bill 2021 but fails to get it passed in Parliament, he will have to resign and either a new Prime Minister will be sworn in[11] or Parliament will be dissolved[12] and there will be a general election held within sixty days from the date of the dissolution.[13]
In order to preserve the status quo, the Cabinet could advise the YDPA to issue a Proclamation of Emergency and at the same time prorogue Parliament.
The latter is important because if both Houses of Parliament are not sitting, and the YDPA 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.”[14]
This can, in all likelihood, include ordinances relating to budgets and funds.
Some quarters are contending that the YDPA has the discretion to refuse to issue the proclamation.[15]
After all, Article 150 of the Federal Constitution does provide that the YDPA “may” issue the proclamation.
With all due respect, that position is contrary to established case law. Though, of course, such case law can be overruled by a subsequent Federal Court.
Undoubtedly, Article 150 of the Federal Constitution is silent on whether a Proclamation of Emergency is a matter of the YDPA’s absolute discretion[16] or whether it is a matter in which the YDPA has to “act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet.”[17]
However, this issue has been ventilated before the courts numerous times in the past.
The Privy Council in Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50 (“Teh Cheng Poh”) held the following:
“Although this, like other powers under the Constitution, is conferred nominally upon the Yang di-Pertuan Agong by virtue of his office as the Supreme Head of the Federation and is expressed to be exercisable if he is satisfied of a particular matter, his functions are those of a constitutional monarch and except on certain matters that do not concern the instant appeal, he does not exercise any of his functions under the Constitution on his own initiative but is required by Article 40(1) to act in accordance with the advice of the Cabinet. So when one finds in the Constitution itself or in a Federal law powers conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affairs exists or that particular action is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the Cabinet, or the opinion or satisfaction of a particular Minister to whom the Cabinet have delegated their authority to give advice upon the matter in question.”[18] (emphasis mine)
The position taken in Teh Cheng Poh was affirmed by the Federal Court in Abdul Ghani bin Ali @ Ahmad & Ors v Public Prosecutor [2001] 3 MLJ 561:
“It is my considered view, based on the constitutional provisions and the authorities cited, that the Yang di-Pertuan Agong, in acting under cl (1) of art 150 of the Constitution in the position of a constitutional monarch, must act on the advice of the Cabinet as provided in art 40 of the Constitution.”[19] (emphasis mine)
In view of the above, the existing legal position is that the issuing of a Proclamation of Emergency is a matter whereby the YDPA acts in accordance with the advice of the Cabinet.
Therefore, the YDPA appears to not have a discretion to refuse a Proclamation of Emergency if the YDPA is advised by the Cabinet or the Minister acting under the general authority of the Cabinet to issue the said proclamation.
[1] Shannon Teoh, “Malaysia set for emergency measures to avert snap polls amid Covid-19 pandemic.” StraitsTimes.com. The Straits Times. Accessed October 23, 2020. https://www.straitstimes.com/asia/se-asia/as-malaysias-cabinet-meets-speculation-mounts-emergency-may-be-declared-to-avert-snap
[2] “Part XI – Special Powers Against Subversion, Organised Violence, and Acts and Crimes Prejudicial to the Public and Emergency Powers.” Commonlii.org. Common LII. Accessed October 24, 2020. http://www.commonlii.org/my/legis/const/1957/11.html
[3] “Malaysia: Act No. 68 of 1966, Emergency (Federal Constitution and Constitution of Sarawak) Act.” Refworld.org. Refworld. Accessed October 23, 2020. https://www.refworld.org/docid/3ae6b52620.html
[4] “Malaysia: Ordinance No. 1 of 1969, Emergency (Essential Powers) Ordinance.” Refworld.org. Refworld. Accessed October 23, 2020. https://www.refworld.org/docid/3ae6b5604.html
[5] Khairil Azmin Bin Mokhtar, “The Emergency Powers (Kelantan) Act 1977.” irep.iium.edu.my. IIUM Repository. Accessed October 23, 2020. http://irep.iium.edu.my/52627/7/20161128105142210.pdf
[6] Penyata Rasmi Parlimen Dewan Negara. Parlimen Kedua Belas Penggal Keempat Mesyuarat Ketiga. Selasa, 20 Disember 2011. Parlimen.gov.my. Parlimen. Accessed October 23, 2020. https://www.parlimen.gov.my/files/hindex/pdf/DN-20122011.pdf
[7] “Parliament seating arrangement shows Muhyiddin has majority of 2.” TheMalaysianInsight.com. The Malaysian Insight. Accessed October 23, 2020. https://www.themalaysianinsight.com/s/246631
[8] Arfa Yunus, “Anwar says has ‘strong, formidable, convincing’ majority to form government.” NST.com.my. New Straits Times. Accessed October 23, 2020. https://www.nst.com.my/news/nation/2020/09/626586/anwar-says-has-strong-formidable-convincing-majority-form-government
[9] As a general rule, the annual financial statement has to be laid before the House of Representatives before the commencement of that financial year [Article 99(1) of the Federal Constitution]. Although Parliament can provide otherwise, in view of the slim majority TSMY has/had, it is unlikely that any sort of deferment will be obtained.
[10] “US gov’t shutdown: How long? Who is affected? Why did it begin?” AlJazeera.com. Al Jazeera. Accessed October 23, 2020. https://www.aljazeera.com/news/2019/1/25/us-govt-shutdown-how-long-who-is-affected-why-did-it-begin
[11] Article 40(2)(a) read together with Article 43(2)(a) of the Federal Constitution
[12] Article 43(4) of the Federal Constitution
[13] Article 55(4) of the Federal Constitution
[14] Article 150(2B) of the Federal Constitution
[15] Manzaidi Mohd Amin, “Apa jadi jika YDPA tak perkenan cadangan darurat? – Isham.” MalaysiaGazette.com. Malaysia Gazette. Accessed October 23, 2020. https://malaysiagazette.com/2020/10/24/apa-jadi-jika-ydpa-tak-perkenan-cadangan-darurat-isham/; See also 24th October 2020 statement by the Sabah Law Society. Facebook.com. Facebook. Accessed October 24, 2020. https://m.facebook.com/groups/7232966740?view=permalink&id=10157112442511741
[16] Article 40(2) of the Federal Constitution
[17] Article 40(1) of the Federal Constitution
[18] Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50, at p. 52
[19] Abdul Ghani bin Ali @ Ahmad & Ors v Public Prosecutor [2001] 3 MLJ 561, at pp. 587-588
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