EMERGENCY

DR. NORAZLINA ABDUL AZIZ

 • o If the YDPA satisfied that a grave
emergency exists whereby the security,
Art 150(1) or the economic life or public order in
the Federation or any part thereof is
threatened, he may issue a
proclamation of Emergency.
Emergencies in
Malaysia
Communist threat
1948-1960

3rd Sept 1964 – Indonesian

confrontation

1966- SKN
1969- Racial Disharmony

1977-Kelantan

2013 – Lahad Datu, Sabah

Reasons to proclaim➔
There is threat to:
1. Security

2. Economic Life

3. Public order
PP v.
JOHNSON • Broaden the concept
includes wars, famines,

TAN HAN earthquakes, floods,

epidemics and collapse of

SENG[1977] civil Govt.

Area of Threats:

Federation
• Communist threat 1948; 13 May
1969
Any other part in Malaysia
• Stephen Kalong Ningkan 1966;
Lahad Datu
What would amount to
threaten to Federation?

•Need not be
actual violence

•Mere threat or
imminent danger
satisfy the
prerequisite.
 • The appellant claimed:
The proclamation of a state of
Emergency, being made on the

Stephen advice of the Federal Cabinet, was null

and void in that it was not made bona
Kalong fide but in fraudem legis(In fraud of the
law)
Ningkan V • Held: the onus was on the appellant to

Govt (1968) show that the proclamation of

emergency was in fraudem legis as
2 MLJ 238 alleged by him or otherwise
unauthorized by the relevant
legislation and in this case the
appellant had failed to discharge the
onus on him
 • Article 150 of the Federal
Constitution gave power to
the Federal Parliament ….
In the circumstances the
Principle in Federal Parliament had
power to enact the
SKN emergency (Federal
Constitution and
constitution of Sarawak)
Act, 1966 and therefore the
appeal must be dismissed.
Proclamation
of Emergency
• Discretionary or Non-
Dicretionary?
• Art. 40(1) & 40(1A)cannot
be ignored.
Nature of Power during
Emergency: Legislative

•YDPA may promulgate ordinances if the

Article two Houses are not in session concurrently
•have the same effect as the Act of
150(2B)&(2C) Parliament

•REFER 1969 Emergency

•Parliament make laws on any matter

•Art.79 may be by pass
Article 150(5) •Consulting/consent of YDPA and etc may
be by pass
 Legislation under Art 150 can violate
any provision [150(6)]of the FC
except in:

• Extend 1. Art 150(6A) – Islamic law, custom of

of legislative the Malays, matter of native law or
power: customs in Sabah and Sarawak.
o
2. Art 151- Restriction on preventive
detention.
 Kam Teck Soon V Tim
Menteri Dalam Negeri
Malaysia (2003) 1 MLJ 321

That was the purpose of art

(per Ahmad Fairuz CJ This would save the arrest 150(6). The appellant’s
(Malaya)) If and detention which contention that the arrest
s 3(1) was inconsistent with would have been unlawful and detention violated Art
Art 5(3) then s 3(1) must because of violation of 5(3) and thus unlawful
prevail. art 5(3). would defeat the purpose
and intention of Art 150
Emergency laws can last
during the emergency plus 6
months after the emergency
end – Art 150(7).

An Emergency Proclamation
may be revoked by the YDPA
or annulled by both Houses.
 • Judicial review of a
Proclamation is barred by Art
150(8)(a) – satisfaction of YDPA
final and conclusive
and 150(8)(b) – no court have
• Judicial Review jurisdiction to entertain any
application

o JR of an Emergency
ordinance is likewise barred.
CONCLUSION

• A state of emergency is a governmental declaration that may

suspend some normal functions of the executive, legislative
and judicial powers, alert citizens to change their normal
behaviours, or order government agencies to implement
emergency preparedness plans.
• It can also be used as a rationale for suspending rights and
freedoms, even if guaranteed under the constitution.
• Such declarations usually come during a time of natural or
man made disaster, during periods of civil unrest, or following a
declaration of war or situation of international or internal
armed conflict.