MODERN democratic constitutions provide for a declaration of state of emergency to meet the exigencies of a grave threat to a nation.
Such provisions are provided for the government to respond effectively when the security, economic life and public order is under threat.
Citizens expect there would be an objective evaluation of circumstances that exist or are an imminent threat to security, economic life and/or public order for such a declaration to be made and for the suspension of the norms of democracy.
It is expected that such emergency measures as may follow a proclamation ought to have a temporal duration before the restoration of democratic governance.
In all democracies, the will of the people is expressed through the legislative assembly.
The doctrine of parliamentary sovereignty reflects this.
In Malaysia, we have a written Constitution, which is the supreme law of the federation.
Where does sovereignty reside in a modern state? In pre-modern monarchies, the king as ruler is sovereign.
In an ancient maxim: “The person of the king is sovereign”, is by law made up of two bodies, a natural body, subject to infancy, infirmity, sickness and death, and a political body, perfect, powerful, and perpetual.
The proclamation of emergency now gazetted PU(A)7/2021 states that the emergency commences on Jan 11, 2021 and ends on Aug 1, 2021 .
The suspension and cancellation of Parliament and the state legislative assembly sitting.
The Emergency (Essential Powers) Ordinance 2021; PU(A)12/2021, Sections 14 and 15 provide that for so long as the emergency is in force all provisions relating to the summoning, proroguing dissolution of these august bodies shall not have any effect and any meeting which has been summoned but has not been held is cancelled.
The cancellation of the scheduled sittings of both federal legislature (the Parliament) and the state assemblies has given rise to disquiet.
Both instruments are promulgated under Article 150 of the Federal Constitution.
It is significant that Article 150 expressly states that both a proclamation of emergency and any ordinance which has been promulgated under Clause 2(B) of Article 150 “shall be laid before both Houses of Parliament”. The language is mandatory .
It is also of interest that in the draft Constitution (Article 138) there was provided, “that if Parliament is not sitting it shall be the duty of the Yang di-Pertuan Besar to summon Parliament as soon as practicable”.
Furthermore, again from the Draft Constitution, Article 13(8)(3) provides that a Proclamation shall cease to operate at expiration of two months from the date of its issue unless an extension is resolved by Parliament.
As for ordinances, they are to be laid before Parliament and shall cease to operate within 15 days from the Houses of Parliament.
It is regretted that these sound provisions were not included in the Federal Constitution.
Nevertheless, there is clear textual support that a Proclamation of Emergency and Ordinance passed under Article 150 is subject to the jurisdiction of Parliament.
It cannot be that an instrument of law which has its validity from Article 150 can itself negate the very body which provided for its promulgation.
The Federal Constitution, the supreme law of our beloved nation, has the power to extend or to revoke and annul such laws, i.e. the Parliament cannot be suspended or cancelled in its sitting when it is part of the basic structure for supervisory authority over the executive powers.
The Yang di-Pertuan Agong granted an audience to Tan Sri Rais Yatim, the speaker of the Dewan Negara (the Senate) and Datuk Azahar Azizan B. Harun, the speaker of Dewan Rakyat (the House of Representatives) on Feb 24.
The palace then issued a statement with strong affirmation, “that Malaysia as a nation practises a system of democracy which is founded on the principle of the Supremacy of the Constitution”.
His Majesty enjoins that the administration of government involves not exclusively the Executive but also the judiciary and Parliament.
His Majesty declared and opined that there can be a sitting of Parliament notwithstanding there being a proclamation of emergency on a date which His Majesty thinks appropriate on the advice of the prime minister.
His Majesty’s statement is wise and discerning.
This palace statement is to be welcomed by all concerned citizenry.
Historically, the experience of emergency declarations has been the subject of interrogations.
Carl Schmidt, a German Jurist during the wane of the Weimar Constitutional order, wrote trenchantly on what he termed the state of exception.
The Schmittian question, “Who then is a sovereign in a modern state? You tell me who makes the final decision in a crisis; then I shall tell you who is the sovereign” has cast a light on the real politics of an emergency declaration.
In Malaysia’s democracy, the sovereign will of her people is expressed through the ballot box and the elected assembly of legislature.
The Federal Constitution, within its provisions for the declaration of an emergency, contained clear provisions for the temporal duration of such proclamation and ordinances.
The legal and political legitimacy of a government and its laws is through the elected assembly.
The sooner Parliament is summoned to sit either to continue the state of emergency, or to revoke or annul the same together with any ordinances the better it is for stability of the nation.
His Majesty has expressed the same commitment with reference to Keluhuran Perlembagaan.
In the intersection between law and the political we also express the maxim: Quare siletis juristae in munere vestro? (Why are you jurists silent about what concerns you?)
We await the Executive’s response to His Majesty’s wise affirmation.
Philip TN Koh is an advocate and solicitor at the High Court of Malaya.
