Can the Government declare an ‘emergency’ to avoid a motion of No Confidence?

The answer is a ‘No’. This nation is not the chessboard of irresponsible politicians. Our Constitutional rights hang in the balance. Will our King stand with the Rakyat?

For a start:

The word ‘Emergency’ with a capital E, is different from the word, ‘emergency’, with a lowercase ‘e’.

They have two different meanings.

An ‘Emergency’  is a legal event.

The second is an unexpected event requiring immediate action.

[1].    A brooding suspicion now comes to light…

A neutral observer might have long suspected that:

(1).      the Covid pandemic has not ‘gravely’ imperilled the nation;

(2).      the Government has lost its Parliamentary majority; and the impending November 02 Parliamentary Meeting will prove that fact;

(3).      the PN Government has been exploiting the Covid pandemic to hide its lack of parliamentary majority; and

(4).      it will not survive Budget day.

[2].    It is not the pandemic that is the problem, but the looming No Confidence Motion

These suspicions became a fact when, on October 23rd the prime Minister and his Cabinet – and senior Civil Servants, including the Chief of the Armed Forces and the Police travelled all the way to Kuantan.

We will deal with the ‘partial’ emergency issue shortly: it is a major point. If you cannot wait, go to Point-[11].

The motive for this request for a ‘partial emergency’, has now come to light. It is because the Government fears ‘political instability’.

By ‘political instability’, we are glibly told, the government now lacks a majority in Parliament. If an Emergency is declared, so the PM and his Cabinet colleagues argue, they can hold on to power, ‘do good for the nation during the Emergency’ and– here it comes – thereafter the nation will have  ‘political stability’.

Let me translate that for you in plain words: the Government now formally admits, in the open, that it has no majority, and under Article 43(4) of the Constitution, it is now obliged to resign: and the King, its leaders say, must prevent that.

What does Article 43(4) say? It states:

‘If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.’

There is widespread concern that the tottering PN Government has breached the Constitution: and may abuse the law, purely to retain power.

[3].    Let us get our fundamentals right

First of all, it is not the Government that can declare an Emergency: that power is in the King’s hands: it is only the King who can decree a ‘Proclamation of Emergency’.

Second, it is a Constitutional Power that falls under Part XI of the Federal Constitution.

Guess what the title of Part XI is?

It is called ‘Special Powers Against Subversion, Organised Violence, And Acts And Crimes Prejudicial To The Public And Emergency Powers’, or ‘Acts and Crimes Prejudicial to the Public and Emergency Powers.’

But when can His Majesty do that?

Well, several conditions need to be met.

Let us examine them.

[4].    What is an ‘Emergency’?

An ‘Emergency’ with a capital E is a legal event.

The Constitution defines an ‘Emergency’ as any event,

‘.. which threatens the security, or the economic life, or public order in the Federation or any part thereof if the [King] is satisfied that there is imminent danger of the occurrence of such event’. 1 Article 150 defines this

[5].    When should the King proclaim an ‘Emergency’?

The King may  ‘Proclaim’ an ‘Emergency’ under Article 150 only if he is ‘satisfied that’ the alleged ‘emergency’ is ‘grave’ and ‘imminent’.

Article 150 says:

‘[A] grave emergency exists whereby the security, or economic life, or public order in the Federation is… threatened’.

[6].    What does ‘Grave Emergency’ mean?

‘Grave’ means ‘giving rise to alarm’, or a condition that is ‘severe’.

‘Grave Emergency’ means:-

(a) national security, or the

(b) national economic life, or

(c) public order across the country is

(i) ‘severely threatened’; and that

 (ii) ‘it is imminent’.

[7].    Is the Motion of No Confidence faced by the PN Government, a ‘grave Emergency’?

Is it enough, in law, to satisfy the legal meaning of the phrase, ‘Grave Emergency’?

The answer is ‘No’.

The current government is the author of its own problems.

Why should the rakyat suffer for it?

[8]. The Covid-19 pandemic does not fall within the 3 conditions  of Art.150, and is not a  ‘grave Emergency’

The pandemic is a ‘Public health’ issue. It is not an issue that falls within the definition of an ‘Emergency’ under Article 150.2 It does not fall under the three definitions of events ‘threatens the security, or the economic life, or public order in the Federation or any part thereof if the [King] is satisfied that there is imminent danger of the occurrence of such event’. ‘I thank Mr. Shanmuga Kanesalingam, who brought this to my attention

Second, at the time of writing this essay, there have been 843 new cases, 23,804 confirmed cases, 15,884 recovered cases, and 204 deaths:

That is a minuscule proportion of the national population.

Assuming the infected cases reach many thousands within a fortnight (and we hope not) that still does not translate into an ‘Emergency’.

A coronavirus threat is not an ‘Emergency’. Wouldn’t you agree?

So really there is no necessity to declare any emergency.

The Government is simply using the Covid-19 pandemic as a smoke screen.

[9].   Are there other ‘grave’ problems as required under Art. 150?

No.

Why?

[10].   It will be  a tyrant who argues that the current No Confidence Motion that the Government faces is: –

(a).       a ‘Subversion’ [i.e. ‘the undermining of the power and authority of an established system or institution’], or

(b).      ‘Organized Violence’ (that requires no explanation); or

(c).       ‘Acts and Crimes Prejudicial to the Public’ (we have seen none of that) or;

(d).      an ‘Emergency’.

Think on it:

The problem we now face is not the sort of ‘Emergencies’ we have previously faced: e.g.,

It is not an ‘invasion’, e.g. the Japanese invasion of Asia during the Second World War.

It is not any ‘war’, e.g. Indonesian Confrontation against Malaysia in 1963.

It is not an ‘Uprising’ like the 1969 May 13  event.

There are no ‘riots’ in any part of the country.

Again, there are no ‘insurrections’ or ‘disasters’ whether of a ‘civil’ or ‘medical’ nature.

So where is the ‘Emergency’?

[11].  What is a ‘partial Emergency’ ?

There is no such thing.

An ‘Emergency’ is a legal ‘status’.

It is a set of circumstances, not of fact alone, but of ‘fact and law’.

When one says that a ‘this lady is with child’, he does not mean that she is ‘partially pregnant’.

She is with child or she is not. She cannot be ‘partially with child’.

I had a teacher.

He once said, ‘Do not ask me stupid questions, so that I do not have to give you stupid answers’.

 That just about sums all this up.

[12].    There is a fear that all this is a strategy for the Government to:-

a.  declare an Emergency for a few months;

b.   extend it to a Second or Third Emergencies at the end of it;

c.   prevent Parliament from convening or passing laws;

d.   refuse to face up to the Motion of No Confidence;

e.   avoid a Budget defeat at Parliament;

f.   pass a budget favourable to itself without accountability, without oversight, and without stepping into Parliament;

f.   meanwhile use the 6 to 18 months to  prepare for a snap election; and

g.   prevent the Opposition from meeting or preparing for elections – or worse –  the government might conduct extra-legal detentions of its opponents and critics.

These fears are real.

Few have forgotten what happened in the 1980s or the Internal Security Act, which now exists under a camouflaged name.

[13].    Who will be the person who will advise the King that the national situation is ‘grave’?

It will be very person who will profit by it: the Prime Minister.

This is because,  the King must comply ‘with the advice of’ the Prime Minister: Article 40(1A).

And the PM will be accompanied to the Palace by a group that does not wish to give up its power:

They will use the Constitution for self-preservation, contrary to their oaths. They swore to uphold the Constitution and the law: not abuse it to create an Emergency.

This government  now clings to power without the constitutional legitimacy of Parliament’s approbation.

[14].    Can the King’s decision be challenged in court?

Of course. Any legal decision that is against the fabric of the Federal Constitution can be questioned in a court.

There is an opposing argument that Article 150(8) says the King’s conclusion cannot be challenged in any court. 3 Article 150(8) says: ‘Notwithstanding anything in this Constitution—  (a)  the satisfaction of the Yang di-Pertuan Agong mentioned in Clause (1) and Clause (2B) shall be final and conclusive and shall not be challenged or called in question in any court on any ground; …’

Those who abuse this power may bask under the assumption that Article 150(8) protects them.

This view is erroneous:

The current administration appears hell-bent on holding on to its power by any means.

A deep concern runs across the entire nation that the Government may abuse Article 150 to side-step a legitimate parliamentary challenge on November 02, or thereafter.

It is the right of the people to select a PM of their choice. The people, through their elected MPs in the Dewan Rakyat have a right to choose a candidate as PM – one other than the incumbent as prime minister – and it is the constitutional duty of the King to appoint the people’s choice.

That is their fundamental right.  It is guaranteed under the Constitution: in Article 43(2). It states:

(1).  [The King] shall appoint a … Cabinet of Ministers… to advise him in the exercise of his functions.

(2).  The Cabinet shall be appointed as follows, that is to say:

(a)  [The King]  shall first appoint as … Prime Minister … a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House...’.

That House there mentioned is – the Dewan Rakyat: it is the House of the rakyat.

If Article 150(8) is strong-armed to create a false Emergency when the situation does not warrant it; if the purpose of the Emergency is to defeat a constitutionality-guaranteed fundamental right, then in my view, any royal decision based on those grounds, is not immune from legal challenge4Kesavananda Bharati v. The State of Kerala AIR 1973 S.C. 1461, (1973) 4 SCC 225 i.e. such decisions are said to be ‘justiciable’.5R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41

Should the courts stand mute with bowed heads, while the government defeats the rights of the Rakyat?

[14].    What will the King’s lawyers advise His Majesty?

They must advise His Majesty that there is no ‘Emergency’ at all: and that those who seek a royal Proclamation of Emergency from King are not entitled to that order, because that will breach the  Constitution, and the law of the land will be abused.

His Majesty should refuse permission; and prevent a constitutional coup d’état.

Otherwise we risk being laughed to scorn by other nations: we will become a banana republic.

In conclusion…

This nation is not the chessboard of irresponsible politicians.

Our lives are not the playthings of political parties, jockeying for power.

The stakes are at an all-time high. Our Constitutional rights hang in the balance.

Make no mistake: this is a decisive moment in history.

Will our King stand with the Rakyat?

 

 

[The author expresses his gratitude to Ms. KN Geetha, Miss Shalini Ragunath, Miss An Nee Goh, Mr. JD Prabhkirat Singh,  Mr. GS Saran, Puan Wan Nursalena bt Wan Abdullah, Ms Amuthambigai Tharmarajah, Mr. Shanmuga Kanesalingam, Mr. Nathan Sithambaram and Mr. ‘Rajan’ Ratna Kumar for their assistance]

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