Is it legal for the Malaysian Government to deploy its Armed Forces?

My view is, No. Why? Start with: ‘Which law says this can be done?’ Are you, my friend, prepared to come for a ‘Constitutional Walk’ with me?

On March 20, 2020, the Malaysian Government announced that it would deploy its Armed Forces to assist its national police force in its continuing fight against the coronavirus threat.

This move raises two questions:

Was it legal?

Was it practical?

“Just because something is convenient, does not mean it is legal.

Bear with me – and come along for this Constitutional Walk’

What I am trying to show is that if you look carefully at the relevant parts of the Constitution or Parliamentary Acts, there is no legal cause to deploy the Armed Forces.

[1].  For a start – ask yourself  where does the Government’s power come from?

The power to deploy the Armed Forces comes from two places: from the authority of the Constitution, and from Acts of Parliament.

We have to start somewhere, and the best place for that is the Constitution.

[2].  What does the Constitution say?

The King is the supreme commander of the Armed Forces.1Article 41 of the Federal Constitution Again, the Armed Forces is part of the Public Services.2Article 132(1)(a)

[3].  The power to govern is called the ‘Executive Authority’

That power is vested in the hands of the King as well.3Article 39

However the King will conduct his functions ‘on the advice of the Cabinet’ which means, the prime minister.4Article 40(1) and clause(1A)

However, in the exercise of his functions, the King may act in his sole discretion,

‘in any… case mentioned in the Constitution’.5Article 40(2

Further, Acts of Parliament may give the power of discretion to the King.6Article 40(3)(a) and(b)

The power to control the Armed Forces rests with the Armed Forces Council.

It acts under the authority of the King: but this authority of the King is only as to its command, discipline, and administration.

For ‘operational use’, the Armed Forces acts directly, presumably, under the authority of the Cabinet.7Article 137(1) read with Article 40(1)(1A)

[4].  But the Government cannot do what it likes – ‘Executive Authority’ is limited by Article 80

The Government can only exercise its ‘Executive authority’ if Parliament allows it to.

And Parliament does that by enacting laws.

These laws instruct the Government what it can do.8Article 80(1) – ‘Subject to the following provisions of this Article the executive authority of the Federation extends to all matters with respect to its parliament may make laws, and the executive authority of the State to all matters with respect to which the Legislature of that state may make laws’.

[5].  But Parliament also cannot do what it likes – the Constitution limits Parliament’s  power to make laws

The Constitution controls Parliament.9Article 73. The limitations the Constitution places on Parliament are in Article 74 and 79

The Constitution has two lists: they are called the ‘Federal List’ and the ‘Concurrent List’.10Article 74(1)

Parliament can only make laws on the subjects included in those two lists.

It cannot step outside those two lists.11This involves for example ‘external affairs’, ‘defence of the Federation’, ‘internal Security’, ‘civil and criminal law and procedure in the administration of justice’, ‘Finance’, ‘trade, commerce and industry’, ‘shipping, navigation and fisheries’, ‘communication and transport’, and so forth.

It cannot, e.g., make laws about Sarawak or Perak, unless those States agree.12 State Legislative Assemblies of those states have to agree

[6].  On what duties of the Armed Forces, does the Constitution allow Parliament to make laws?

Parliament can make laws involving the Armed Forces over matters involving ‘Defence of the Federation or any part thereof.’13 Article 74 read with the Constitution’s Ninth Schedule, ‘Legislative Lists’, ‘List 1  Federal List’)

[7].  What does ‘Defence of the Federation’, mean?

It includes,

War and peace: alien enemies … enemy property, trading with the enemy, war damage, war risk insurance’. 14paragraph 2(e)

So, for the first time, we see the words, ‘War and peace’ in the Constitution.

There is a relaxed principle of interpretation called ‘constitutional coherence’:

In interpreting the words of the Constitution, where one word exists amongst a group of constitutional words, they each must have some sense of coherence: (this is slightly different from the ‘ejusdem generis’ rule we will speak of in the next section).15Justice Perram, ‘Constitutional Principles and Coherence in Statutory Interpretation’, Federal Court of Australia, 11 November 2016 –  For a link see here.

[8].  A word,  sitting amongst a group of words, must take its meaning from its colleagues

There is a point I wish to make at this part of our journey:

“When words occur in group, they all ‘have the same colour’.

Like words must be treated in the same way. This is called the principle of ‘ejusdem generis’.

Note that ejusdem generis is not as relaxed as the ‘constitutional coherence principle’ we spoke of at the last section.

Bear this in mind from now on.

So the word ‘peace’ in the phrase ‘war and peace’ must refer to any ‘peace’ after the conduct of a ‘war’.16It is called the ‘ejusdem generis’

[9].  Is ‘Civil defence’ part of the work of the Armed Forces?

Now, there is an Act that takes care of civil defence: the Civil Defence Act 1951.17 (Revised 1979)

That Act has nothing to do with the work of the Armed Forces.

It describes ‘civil defence’ as:18The phrase ‘civil defence’ also appears in the Constitution at Legislative List-1  paragraph 2(h)

‘[Any] measures not amounting to actual combat [to enable] defences against any form of hostile attack …’. 19confusing I know – section 2,Civil Defence Act 1951

It refers to,

‘[The] organisation, formation, maintenance, equipment, training and discipline… for the purposes of the Police Force, Fire Brigades,  …’ etc. 20Ibid, section 3(2)

Contrast that with the Constitution, which describes the duty of the Armed Forces’ as,

‘[Defence] of the Federation or any part thereof’. 21Federal List, paragraph 2

So ‘civil defence’ is not the work of the Armed Forces.

Even though ‘civil defence’22described in the Federal List, paragraph 2(h) falls within ‘defence of the Federation’.23paragraph 2 of the Federal List

I think that what it might involve is nothing more than – at the highest – the Armed Forces training employees of civil defence organisations.

[10].  The Constitution defines the ‘Armed Forces Council’ as being part of the ‘Machinery of Government’

The Federal list also includes a reference to ‘the machinery of Government… including…  the Armed Forces Council’.24Constitution, Federal List paragraph 6

[11].  But so what? Opposing Arguments

Suppose someone argues that because the Armed Forces is part of the ‘public service’, therefore it may ‘serve the public’.

This is not quite right.

That can only happen if Parliament enacts an Act to go with that: 25This is provided for in Article 132(2)

The second reason is that any member of the public services ‘holds office during the pleasure of the(King)’: 26Article 132(2A)

This is why the Armed Forces is there – to function under the ultimate authority of the King – not any group of politicians.

The third argument for using the Armed Forces comes from the phrase ‘secondment of officers’ in Article 134.

Correctly interpreted, it is a power given to the Federation, which may,

‘[At] the request of the State, local authority, or statutory authority of any organisation, in or outside Malaysia, second in a member of its public services…’ to that external body. 27Article 134(1)

Fourthly, and importantly, Article 134 speaks of the singular:  ‘an officer’.

It does not speak about the entire Armed Forces: its troops, its divisions, regiments, or battalions.

[12].  Under the Armed Forces Act is the Covid-19 event a ‘disaster’ or an ‘emergency’?

We all agree that the Covid-19 virus event is a significant health risk.

Is it, however, an ‘emergency’? The law relating to the Armed Forces states that an ‘emergency’ includes ‘war, invasion, riot, insurrection, and civil disaster whether actual or apprehended’.

The only phrase that is relevant here is: ‘civil disaster’. How do we understand this phrase?

[13].  Is Covid-19 occurrence a ‘disaster’ under the Armed Forces Act?

As I understand it, neither the Ministry of Health, or the Defence Minister, or indeed the Prime Minister, to other members of the Cabinet who may be concerned with the current virus issue –  none have ever described the coronavirus as a ‘civil disaster’.

The Armed Forces Act uses the two words ‘emergency’ (lowercase) and ‘Emergency’(the capitalised version). The word ‘emergency’ (in lowercase) is not defined in that Act.

But the Act uses both these words – ‘emergency’ (lowercase) and ‘Emergency’(capitalised) – in the same sense.

The Armed Forces says that an ‘Emergency’ (capitalised) occurs as a result of a ‘Proclamation of Emergency’ issued under Article 150 the Federal Constitution.28Section 13(1)(c) of the Armed Forces Act 1972

Other than the use of the words ‘emergency’ and ‘civil disaster’ there is no reference to the current pandemic or related concepts in the Armed Forces Act.

[14].  How does  Police Act define ‘civil disaster’ or an ‘emergency’?

It does not.

Neither do the Interpretation Acts 1948 and 1967.

Under this Act, for the first time , there is a mention of the Police Force working with the Armed Forces – and here is the sticky ‘command’ point – the Armed Forces have to work under the Inspector General of Police.

Leave that for the moment.

Under the Police Act 1967 the King may,

‘[In] time of war or other emergency’ employ the (Police) Force… to serve in conjunction with the Armed Forces of Malaysia…

… Provided that any part of the Force sample shall continue to be under the command of the Inspector General(of Police)’.29Section 7(1)

But because the word ‘emergency’ occurs within the phrase ‘… in time of war or other emergency’, the phrase ‘or other emergency’ must mean some warlike ‘emergency’.

An attack by a virulent creature on a several thousand people out of a population in excess of 32.37 million, does not seem to me, to be ‘an emergency’.

Which brings us to other statutes, namely the Prevention and Control of Infectious Diseases Act 1988(‘PCIDA’) and the National Security Council Act.

First the PCIDA.

[15].  What does the Prevention and Control of Infectious Diseases Act 1988 (‘PCIDA’) say?

Under the PCIDA the Minister may appoint ‘any suitable person’ – note the singular – ‘to be an authorised officer for the purposes of this Act’.30Section 3, PCIDA

‘Authorised officer’  means, under the PCIDA,

‘any Medical Officer of Health, any health inspector, or any officer appointed by the Minister under section 3’  of PCIDA.

This means, under the ‘ejusdem generis’ principle, we must treat similar words in the same way.

“So, an authorised officer’ under the PCIDA must mean someone with a medically qualified background. Not a soldier.

Second, it is the PCIDA that is the most relevant authority on any emergency related to the ‘prevention and control of infectious diseases’.

And right now we are dealing with a virus that falls under this Act.

Although the coronavirus is spreading rapidly – the powers to ‘prevent’ and ‘control’ that disease falls under the PCIA Act.

Not under the Police Act, the Armed Forces Act, or the National Security Council Act.

And the most relevant Act says nothing about the Armed Forces being deployed.

[16]. Does the National Security Council Act (NSCA) help?

Not at all.

The Act took effect on August 1, 2016.  The Najib Government moved it very fast in Parliament.

It is an unconstitutional statute.

Under the Constitution, only the king can proclaim a state of emergency.31Article 150 The King has not done that.

Yesterday, during His Majesty’s short Royal Address, he urged the populace to obey the orders of the Government and to be safe.

During his address His Majesty did not give any impression, nor did any of his listeners get any impression of – any state of ‘emergency’.

Constitutionally, a Proclamation of Emergency can only be made by the King – and no one else.

If the NSCA takes for itself that power of the King, it acts unconstitutionally.

The King may ‘Proclaim’ an ‘Emergency’ under Article 150 only if,

‘[A] grave emergency exists whereby the security, or economic life, or public order in the Federation is… threatened’. 32Article 150(1) and (2)

A coronavirus threat does not fit into that description. Wouldn’t you agree?

[17].  National Security Council is (said to be) set up for Paris-terror attack type cases

Since last week, on several numerous occasions, the Ministry of Defence has been referring to how the nation’s National Security Council is directing relief during this time.

The NSA has three core functions:33Section 4 of the National Security Council Act

(1).  defending national sovereignty and strategic importance;

(2).  crisis and disaster management; and

(3).  border management of land, maritime and air resources.

None of these matters, on proper analysis, bear any reference to the virus attack that has assailed some parts of the nation – despite the use of the words ‘crisis and disaster management’.

I have dispelled this argument by my reasoning earlier.

These NSCA core functions refer to a different kind of ‘crisis and disaster management’: wars, insurrections, riots, terrorist attacks, etc.

None of these really address the threats of the current health pandemic.

So the use of the NSC – thereby justifying the use of the Armed Forces – seems far-fetched.

What we need is scientific research, genetic coding, reagents that will turn the viruses off. And we need to test the affected populations with a South Korean-like Testing Kit. South Korea tests 20,000 persons daily.

We do not need soldiers.

[18]. What the current circumstances are NOT

The problem we now face is not the sort of ‘emergency’ we have previously faced: e.g., not an ‘invasion’, e.g. the Japanese invasion of Asia during the Second World War; not any war’, e.g. Indonesian Confrontation against Malaysia in 1963; nor the 1969 May 13-type event.

Neither is there any ‘riot’ in any part of the country.

Again, there are no ‘insurrections’ or any ‘disaster’ whether it is ‘civil’ or ‘medical’.

At the time of writing this essay, there have been 1,183 confirmed infected cases, and 8 deaths and 114 patients have recovered: click here for the statistics.

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’ or a ‘civil disaster’.

So really there is no necessity to bring the army and convert their role as guardians of our frontiers to  ‘security guards’ which is very demeaning to the Armed Forces’.

[19].  Indiscipline of the populace better dealt with by prosecutions

What we have is a population that has not understood the ‘viral’ nature of Covid-19.

True, about 60% will not obey the police.

What needs to be done with these people is that various Mobile Magistrates Courts need to be set up at toll gates and city centres.

Arrest, charge and try the disobedient by judicial processes.

Also, educate the society at large, on why the coronavirus issue should be taken seriously.

So far this has not been done adequately, or at all.

All these will send a strong message.

It will bring a sense of civic responsibility into the citizenry’s collective mind

But a lack of these alternative methods is no ground to make the Army descend to the ground.

[20].  Should the Government use the Public Order (Preservation) Act?

One more point: to bring to heel disobedient individuals, there has been a suggestion (see here) that the Government should exploit the provisions of the POPA Act. 34Public Order (Preservation) Act 1958 (Revised 1983)

I disagree.

The POPA can only be used if,

‘If, … public order in any area … is seriously disturbed or is seriously threatened.’35Section 3(1), Public Order (Preservation) Act 1958 (Revised 1983)

If so, then,

‘the Minister may,… to … [maintain or restore] public order in the area …, proclaim the existence in that area of a state of danger to public order.’

There is no ‘serious disturbance of’ any ‘public order’- only cases of disobedient individuals who want to go out for a joy-ride. So the Government does not need to maintain or restore any public order.

So there are no grounds to use the  POPA.

[21].  Can we use the medical resources of the Armed Forces?

Certainly, we can . This is a convenient thing to do.  From what we hear, the various Government hospitals dealing with the Covid-19 attack are under-manned and lack resources.

The Armed Forces has its own Medical Corps of doctors, nurses and medical staff.

They can set up field hospitals in quick order, and assist where they are needed.

That would have been proper and practical.

Not bringing thousands of soldiers onto the streets or into the civilian life of the nation.

[22].  But ‘practical’, or ‘convenient’ does not mean ‘legal’

The Malaysian police force numbers over 150,000 men and women.

It may be helpful, even convenient – for the Armed Forces to assist the police under the circumstances to do the job of a ‘security guard’ – which is demeaning for the Armed Forces – because that is not their constitutional duty – but certainly, it is not ‘legal’.

[23].  And finally, we should not erroneously give the impression of being under martial rule – we are not

The deployment of the Armed Forces on the ground is reminiscent of racial riots in 1969.

This may give the false impression that the Government is using the Armed Forces for martial control during peacetime.

This does not beget a good international impression.

The Armed Forces should be left to deal with external threats.

And therefore …

The deployment of the Armed Forces does not, in my opinion, appear to be either practical or legal.

I am happy to be proven wrong.

No one is perfect.

 

 

 

[The author expresses his gratitude to Ms.KN Geetha, Mr. JD Prabhkirat Singh, Mr. GS Saran, Miss KP Kasturi, Mr. Chan Kok Keong, Ms Amuthambigai Tharmarajah, Mr Drew Lim and Ms. Tina Syamsuriatina Ishak for their assistance.]

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