SPECIAL POWERS

Article 149
Purpose:
Article 149 empowers Parliament to enact laws to combat subversion.
- What amounts to subversion is broadly defined under Article 149(1).
- Theresa Lim Chin Chin v IGP: The court held that there is nothing in the law to suggest
that subversion is confined to communist threats.
The powers under Article 149 relate to legislative, not executive action.
- No executive power is conferred by the Constitution for legislation enacted under
Article 149, but such legislation may grant executive power.

Nature of power:
Laws to combat subversion may be enacted under Article 149(1) through a simple majority of
those present and voting in both Houses of Parliament.
- There is no requirement that the subversive activity should be continuing or subsisting
at the time the law is enacted.
- The acts must be “substantial”; individual acts cannot trigger legislative power under
Article 149.
- No proof of actual harm is needed; fear of harm substantial to a number of citizens is
sufficient.
- The enacted law can seek to overcome the subversion and to prevent it from
happening.
Whether or not a proclamation of emergency under Article 150 is in force, legislative action
to combat subversion can be undertaken when the need arises.
- Laws like the Internal Security Act, which has been repealed, can continue to exist
even if the state of emergency comes to an end.
Pre-conditions for law-making:
Legislation under Article 149 can be enacted provided that:
- There is a recital as required under Article 149(1)
- The conditions under 149(a) to (f) are met
Authority exercising the power:
Laws may only be enacted by Parliament and the delegates of Parliament.
- YDPA is not given any law-making power.

Extent of legislative power (Limits imposed):

Laws to combat subversion are valid even if the law violate the rights in Articles 5, 9, 10, 13.
 - Lee Mau Seng v Minister for Home Affairs, Singapore: The court held that the
guarantees of Articles 5, 9, 10 and 13 continue to apply unless explicitly excluded by
the anti-subversion law.
- Thus, laws under Article 149 cannot override fundamental liberties in Articles 6, 7, 8,
11 and 12.
- Ahmad Yani Ismal v IGP: The court rejected the argument that a detention under the
ISA violates the promise of equal treatment under Article 8 as the grounds furnished
to the detainee indicated that there was no unreasonable or arbitrary action contrary
to the right of equality.
- Minister of Home Affairs v Jamaluddin Othman: Where a convert out of Islam who was
actively engaged in seeking to convert others to his new-found faith was detained
under the ISA, the court held that Article 149 authorises curtailment of rights under
Article 5, 9, 10 and 13, but not the right to religion under Article 11.
Legislation under Article 149 must not violate the safeguards for preventive detainees under
Article 151.
Duration of law under Article 149:
Before 1960, a law made under Article 149 automatically expires one year after the day of its
coming into force. However, that provision has now been repealed.
The present position is that laws enacted to combat subversion have no time limits and do
not cease to operate even if the threat which triggered the making of the law has ceased.
However, there are four ways in which a law to combat subversion can expire or be put to an
end:
- By a parliamentary repeal of the law
- Be a resolution of both Houses to annul the law
- The enacting measure may contain a time frame at the end of which the law will
automatically lapse
- The enactment may require periodic parliamentary review and confirmation
- As can be found in the Dangerous Drugs (Special Preventive Measures) Act
1985
Judicial review:
Judicial review will lie if any law under Article 149:
- Violates any right outside of Articles 5, 9, 10, and 13
- If the law does not contain the recital under Article 149(1)
- If the law is not related conditions (a) to (f) in Article 149(1)
Article 150
Purpose:
Empowers the Parliament and the YDPA to take legislative action, and enables the Executive
to take executive measures to overcome the Emergency.
- ‘Emergency’ refers to threats to the security, economic life or public order of the
federation or any part thereof.
- There need not be actual violence or breach of peace; threat or imminent danger is
sufficient.
- Stephen Kalong Ningkan v Government of Malaysia: The Privy Council held that
‘emergency’ includes wars, famines, earthquakes, floods, epidemics and collapse of
civil government.
- Article 150(1): If the YDPA is satisfied that a grave emergency exists, he may issue a
Proclamation of Emergency.
- Article 150(1) must be read with Article 40(1): YDPA’s power to declare
emergency is not a discretionary power, instead it is a federal power.
- N Madhavan Nair v Government of Malaysia: The court held that in
declaring an emergency, YDPA is bound by the Constitution to act at all
times on the advice of the Cabinet.
- However, in situations where there is a caretaker government:
Public Prosecutor v Mohd Amin Mohd Razali: The court held that during
a dissolution, the YDPA is empowered to issue a Proclamation of
Emergency on his own, and that the caretaker governments’ advice on
national emergencies is not binding on the YDPA.

Nature of power (Effect of an Emergency):

Legislative power is granted to the Parliament under Article 150(5).
- Parliament may make laws with respect to any matter required by reason of the
emergency.
- E.g: Emergency (Federal Constitution and Constitution of Sarawak) Act 1966,
which amended the Sarawak Constitution; Emergency (Essential Powers) Act
1979, which was enacted to validate the Essential Security Cases Regulations
1975.
- In enacting an emergency legislation, constitutional provisions requiring consultation
with the States or the consent of any authority outside of Parliament do not apply.
- Consent of Conference of Rulers or Governors of Sabah and Sarawak is not
needed.
- Emergency legislation can be enacted by a simple majority of those present and
voting, and no special majorities are required.
Legislative power is granted to the YDPA under Article 150(2B).
- Article 150(2B): If the two Houses of Parliament are not sitting concurrently (at the
same time) when an emergency has been declared, the YDPA may promulgate
Ordinances.
 - An emergency ordinance is an extra-Parliamentary measure and requires no
procedures and no votes in Parliament.

- The only instance under the Constitution where the executive acquires equal
legislative functions.
- Johnson Tan Han Seng v PP: The court held that under Article 150(2C), the power of
the YDPA to promulgate ordinances during an emergency is as wide as that of the
Parliament’s.
- Kam Teck v Timbalan Menteri Dalam Negeri: The court held that Section 3(1)
of the Emergency (Public Order & Prevention of Crime) Ordinance 1969 cannot
be questioned because of Articles 150(2) and (6) despite its contradiction with
Article 5(3).

- Duration of an Emergency Ordinance promulgated by the YDPA: No fixed time

duration.
- It can last until:
- Revoked by the YDPA
- Annulled by the Parliament under Article 150(3)
- The resolution of one house is not sufficient as found in PP v
Dato’ Seri Anwar Ibrahim
- Six months after the end of a proclamation of emergency

- Teh Cheng Poh v PP: The Privy Council held that the power of the YDPA to promulgate
Ordinances comes to an end the moment Parliament reconvenes. After Parliament
has come back to session, and both Houses are sitting concurrently, the YDPA cannot
continue to make law under Article 150.
Article 150(6): No Ordinance or Act of Parliament passed during an emergency shall be invalid
due to its inconsistency with any provision of the Constitution.
- Parliament or the YDPA can enact legislation to contravene almost the entire
Constitution including the fundamental rights.
- E.g: Emergency (Public Order and Prevention of Crime) Ordinance 1969;
Emergency (Essential Powers) Act 1979; Emergency (Essential Powers)
Ordinance No. 45 of 1970.
- During an emergency, the federal features of the Constitution can be ignored.
- Parliament or the YDPA can encroach on State powers.
- E.g: the Emergency (Essential Powers) Ordinance 1969 (No.1)
suspended all elections to and meeting of State Legislative Assemblies.
The power to enact emergency laws can be delegated.
- The Parliament or YDPA may delegate its legislative power in enacting emergency
laws.
- Government of Malaysia v Mahan Singh: The court upheld the power of the
YDPA to delegate all his power to the Director of Operations.
- Eng Keock Cheng v PP: The court found that during an emergency, fundamental rights
can be violated even by way of delegated legislation.
Executive power is conferred under Article 150(4):
- During an emergency, executive authority of the federation extends to any matter
within the legislative authority of a State.
- The constitutional separation between the Federal and State executive can be
ignored.
- E.g: Article 150(4) allows Federal government to give directions to the States
or any of its officers.
Pre-conditions for law-making:
For an emergency law to be valid:
- An emergency must be in operation under Article 150(1).
- YDPA can make ordinances only if the two Houses are not in session concurrently.
- An emergency Act legislated by Parliament must contain a recital under Article 150(5).
Authority exercising the power:
- Parliament may enact laws under Article 150(5).
- YDPA may promulgate ordinances under Article 150(2B).

Extent of legislative power (Limits imposed):

Substantive Limits:
Article 150(6A): The power of the Parliament and YDPA does not extend to matters of Islamic
law, customs of the Malays, native law or customs in Sabah and Sarawak, religion, citizenship
and language.
- Legislation under Article 150 can violate any provision of the Constitution except items
under Article 150(6A).
All emergency legislation must also comply with the requirements under Article 151, which
deals with safeguards for preventive detainees.
Amendments to the Constitution cannot be made through an emergency legislation.
- Emergency legislation is of a temporary nature; it can suspend, but not cause
permanent alterations to the Constitution due to Article 150(7).
- Amendments to the Constitution must be made through the special procedures
prescribed.
Procedural Limits:
All emergency legislation must contain the recital prescribed under Article 150(6).
- However, in the absence of the recital, the court may regard it as a non-binding
procedural requirement, which does not affect its validity.
- N Madhavan Nair v Government of Malaysia: Where an Ordinance was
challenged because it did not bear the royal seal and customary recitation; the
court held that it has to see instead whether the substance of the requirement
exists.
Duration of a Proclamation of Emergency:
The Proclamation of Emergency has no time limit.
- Federal Court in Johnson Tan Han Seng v PP: A proclamation once issued can go on
indefinitely even if the facts that led to the declaration of the emergency have ceased.
- Article 150(7): When an emergency comes to an end, any laws made during
the emergency will cease to have effect after 6 months.
Under the Constitution, there are only two ways in which a Proclamation of Emergency can
come to an end:
- If the YDPA revokes it
- If the two Houses of Parliament annul it
- In late 2011, a motion to annul the Emergency Proclamation 1966, Emergency
Proclamation 1969 and Emergency Proclamation 1977 was tabled and was
approved in both Houses. The move to annul the emergency proclamations
was made because the conditions, which threatened security and public order
then, no longer existed.
Teh Cheng Poh v PP: The Privy Council added a third way in which a Proclamation of
Emergency can come to an end that is if a later proclamation is made, it impliedly repeals the
previous proclamation.
- However, this view has been set aside by an addition of Article 150(2A) through an
Amendment Act in 1981 which states that more than one proclamation of emergency
can exist concurrently.

Judicial review:
- Article 150(6) where emergency laws cannot be invalidated due to its inconsistency
with the Constitution has made judicial review on constitutional grounds difficult.
- Article 150(8) completely bars judicial review of emergency legislation.