Is the 2021 Malaysian Emergency, constitutional?

Forget about the unconstitutional Emergency. That is a given. Do we have a valid Cabinet in the first place? Find the answer here.

[1].  5-points will prove, without doubt, that this Emergency is wholly unconstitutional. Here they are: –

(a). The Emergency was advised to the King by a constitutionally non-existent Cabinet, because the Cabinet does not – and some pundits say it never had-  have the majority seats in Parliament – a minimum of 112 seats.

(b).  The Emergency Ordinance 2021 completely destroy the Basic Fabric of the Federal Constitution, in 4 ways, namely

(i).  It prevents Parliament from the ratifying or rejecting the ‘laying procedure’ under Art 150(3);

(ii).  It expressly cancels our any Parliament meeting;

(iii).   The Ordinance declares itself to be ‘superior’ law to any other ‘written law’. This is unconstitutional. It cannot be superior to the Federal Constitution which is both ‘Written Law’ and is constitutionally superior. The Constitution says so, explicitly; and

(iv).  Reg 12(4) of the Ordinance ‘deletes’ the Constitutionally guaranteed right to election every five years: Art 55(3).

[2].  Did a constitutionally legitimate cabinet recommend an Emergency to the King?

Can the king make his own decision to declare an Emergency?

Or must there be a prior recommendation by the cabinet to do so?

It is the cabinet headed by the PM. This is in article 43(2)(a) of the Constitution:

‘(2) the Cabinet shall be appointed as follows, that is to say: (a) the yang di-pertuan Agong shall first appoint as perdana Menteri (prime Minister) to preside over the Cabinet 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; …’

But to advise His Majesty the King to declare an Emergency, there must be a valid cabinet in existence.

Was there a valid cabinet?

There could have been, had a majority of the MPs in parliament supported the Prime Minister.

Why is that? Under article 43(2)(a) the PM must command the confidence of a majority of Parliament.

Did he have that? In my view, no he did not.

What’s the meaning of ‘majority’?

Decided cases have held that majority means 50% of the MPs + one.

Kilman v Speaker of Parliament  [2011] 4 LRC 656 at 667:

‘We consider that the phrase ‘an absolute majority of the members of Parliament’ can only mean at least half the members of Parliament plus one.’ (para h)

Mutharika and another v Chilima and another [2020] 4 LRC 536 at 594:

‘The Court below duly acknowledged that it had no power to overrule the Supreme Court of Appeal decision. It nevertheless departed from the position of the Supreme Court of Appeal by demonstrating that the decision was made per incuriam and held that word majority as defined in Black’s Law Dictionary means 50% +1 of the votes of the electorate.’

In our Parliament, the majority is one half of 222, which is 111 Plus 1=112.

On 2 important occasions, the government did not have the majority of 112 votes.

The first is, when the government MPs removed the Speaker on July 13,  2020.

The second time the government was tested was on December 15, 2020, when the budget was allegedly “passed”. Legally it was not.

On both occasions the government MPs had only 111 votes.

That fell below the constitutional majority of 112.

This means that, the proclamation was recommended to the King by a cabinet that did not have a ‘constitutional legitimacy’ under Article 43(2)(a). This lack of legitimacy is demonstrated in several ways:

the Emergency regulation 2021 says it is superior to any written law including the constitution;

the compulsory parliamentary approval procedure in Article 150(3) has been side-stepped. Article 150(3) reads:

‘(3) A proclamation of emergency and any ordinance promulgated under Clause (2b) shall be laid before both houses of parliament …’

parliamentary sittings have been indefinitely postponed;

Constitutional guarantees of elections have been ‘deleted’; and

essential parts of the constitution have been amended or deleted.

Since the Cabinet is non-existent, advising the King to call for an Emergency is outside the law.

If I am wrong in this, there are several other points you have to consider.

[3] The laying before Parliament procedure

The Emergency regulations put the Parliament on leave, thereby killing a constitutional  pre-requisite.

The Regulation attacks the Constitution by postponing parliament.

Under Article 150(3), both the royal proclamation and the regulations must be laid before parliament.

Parliament can either endorse, vary or reject both the proclamation and the regulations thereunder on behalf of the people.

By postponing parliament, the cabinet has killed this constitutional procedure.

By postponing parliament, the government kills the ‘Laying Procedure’.

The Federal Court in Lim Woon Chong & Anor v PP [1979] 264 said if there was no laying then there is no legal power in the proclamation:

‘Thus the main issue here was — was the Proclamation laid before the Senate? If it was, as claimed by the learned Solicitor-General, that was the end of the matter, for everything that flowed from the Proclamation was valid, and there would be no need for us to consider the second argument of the learned Solicitor-General.’

The Privy council in the 1979 case of Teh Cheng Poh v PP [1979] 1 MLJ 50 held that the king only has powers that the Constitution gives him:

‘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.’

Without laying before parliament the Emergency proclamation and the regulations before parliament …the Cabinet cannot go on with the Emergency.

That defeats the Constitution and destroys the right of the people’s MPs to object to the (1) proclamation and the (2) Emergency regulations.

[4] Refusal to call Parliament to an early session.

After all, Parliament regulates its own procedure.

If there is a real Emergency the Parliament Standing allows the cabinet to call for an urgent, early sitting of parliament.

But the Cabinet has not. What does this tell us?

That Cabinet says that there is an Emergency but behaves as if there is no Emergency.

The Cabinet could have called for a Parliamentary session by way of a Zoom meeting.

Every other country is doing it. Why not us? This reluctance is odd – is it not?

Suppose country X attacks Malaysia, as a nation we need to defend ourselves.

We cannot wait for parliament to return to session.

But after a week of defending ourselves, the Cabinet should report to parliament to ask for more money for the troops and armament.

If the Cabinet does not, any money it spends is not authorized.

Now the government can spend money without asking for parliament’s permission.

Parliament has been suspended, so no laying procedure can take place. That cannot be right

This is unconstitutional.

But the constitution says that it is all right.

No one can question what the Cabinet does.

Is that right? If that is not unconstitutional, what is?

[5] The Emergency regulations destroy the fabric of the Constitution in 5 ways

The regulation says all its rules are ‘superior’ to any other ‘written law’.

This cannot be right, because the only body that can make law is Parliament. This is stated in Article 44.

Second, the Constitution is the ‘supreme law’ under Article 4:

(1) this Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

This regulation, which although it has the same strength as an Act Parliament, is subordinate to the Constitution.

The Constitution declares itself to be ‘superior law’: Article 4(1).

So, how can a regulation claim itself to be superior to the Constitution?

The regulations are therefore unconstitutional.

The regulation uses the phrase ‘written law’.

The Constitution defines ‘written law’ as including itself.

These regulations amend the basic foundations of the Federal Constitution.

That is unconstitutional. In the Indian Supreme Court case of Kesavananda Bharati v. State of Kerala [1973] 4 S.C.C. 225; 1973 S.C.R. (Supp.) 1, celebrated and accepted all over the commonwealth including Malaysia, says so:

“The Sovereign Democratic Republic has been constituted to secure to all the citizens the objectives set out. The attainment of those objectives forms the fabric of and permeates the whole scheme of the Constitution.” (para 564).

[6] Right to Elections every 5 years ‘deleted’. Can you imagine that?

The people have a right to change the government every 5 years. The Constitution guarantees it.

The current parliament sat for the first time on 16.7.2018. This will last until 16.7.2023.

However, the Regulation deletes Article 55. It defeats the Constitution:

Summoning, prorogation and dissolution of Parliament

(1) The Yang di-Pertuan Agong shall from time to time summon parliament and shall not allow six months to elapse between the last sitting in one session and the date appointed for its first meeting in the next session.

(3) Parliament unless sooner dissolved, shall continue for five years from the date of its first meeting and shall then stand dissolved.’

This means the Emergency can go on for longer than 5 years.

Even if the government were to change now the word ‘deleted’ to ‘suspended’, the Regulation is void.

The regulation shows that the Cabinet’s intention are not pointed in the right direction. It also shows that the Cabinet has behaved as if it was a legitimate government.

[7] What is the solution? There are three

If it has no majority, lacking Constitutional imperative, the Prime Minister and the entire cabinet should resign.

Second, the King, if His Majesty realizes there is no majority supporting the Prime Minister, His Majesty may remove him.  In at least two cases involving Chief Ministers of Perak and Sabah, this is what happened.

In Dato‘ Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato‘ Seri Dr Zambry bin Abdul Kadir (Attorney General, intervener) [2010] 2 MLJ 285 at 306, para 44 it was said that:

‘It is true that there, the council of Ministers hold office at the pleasure of the governor but the point we are making is that the governor may remove the Chief Minister and the council of Ministers without a vote of no confidence being passed in the Legislative Assembly.’

This was followed in the case of Tan Sri Musa Bin Haji Aman v Tun Datuk Seri Haji Panglima Haji Juhar Haji Mahiruddin & Anor [2020] 12 MLJ 121.

And the Federal Court has upheld it.

Third, anyone affected by the Emergency can apply to court for a declaration that there is no Emergency.

In a 2019 case called Regina (Miller) v Prime Minister (Lord Advocate and others intervening); Cherry and others v Advocate General for Scotland (Lord Advocate and others intervening) [2019] UKSC 41, the UK Supreme Court said that the Cabinet’s decision to suspend Parliament must be rational.

If it is not, the Courts can order Parliament to reconvene.

Anyway, that is my opinion.

 

You May Also Like

Do shoes make a lawyer?

A defining moment during the HINDRAF prosecution

What is Professional Misconduct?

Bolehkah badan pengurusan kondo melarang penghuninya dari masuk rumahnya jika mengesyaki dia dijangkiti Kovid-19?