SPECIAL POWERS

ARTICLE 149
ARTICLE 150
ARTICLE 149
•Art. 149 empowers Parliament to enact laws to combat subversion. It
provides exception to the rights and allows Parliament to make laws
inconsistent with the rights granted under arts 5,9, 10, and 13.
•The Reid Commission proposed such violation of fundamental liberties in
limited situation such as emergency and organised violence to only be
“justified to such an extent as may be necessary to meet any particular
danger which threatens the nation”.
•The Commission also proposed that if such laws are not used to meet such
threats, challenges may be made to such laws.
•The Commission said;
“It must be for Parliament to determine whether the situation is
such that special provisions are required, but Parliament should not
be entitled to authorise infringements of such a character that they
cannot properly be regarded as designed to deal with the particular
situation.”
•It was contended in several cases that application of laws made under
Art 149 should be restricted to communist insurgencies based on the
legislative history including the speeches made by the late Prime
Minister Tun Abdul Razak when moving the motion in Parliament to
pass the Internal Security Bill.
•In Theresa Lim Chin Chin (1988), it was argued that the ISA should be
limited to communist insurgencies alone. The Supreme Court decided
that art. 149 is not restricted to communist insurgencies.
•But in Mohamad Ezam Bin Mohd Noor (2002), it was stated that
Theresa Lim Chin Chin was decided wrongly.
•Mohamed Dzaiddin CJ explained that based on the authorities cited,
he was of the view that the purpose and intent of the ISA is for all
forms of subversion but was more directed to communist activities.
•Although the long title and preamble indicate that it is not confined
to communist activities, the speeches in Parliament concentrated on
that form of activity.
•In Musa (1970), the Court said that art. 149 validates what is
supposed to be invalid under arts. 5, 9, 10, and 13.
•Art. 149 clearly gives a very wide power of legislation, particularly
when it says that any provision of the law designed to stop or
prevent the action which has been taken or threatened is valid
notwithstanding that it would be inconsistent with the said four
fundamental liberties.
•With regard to denial of access to lawyers by police, Siti Norma
Yaakob FCJ in Mohamad Ezam disagreed with the trial judge that art.
149 validated the denial of access by the police.
•But under s. 73 of the ISA that allows detention for more than 24
hours without the order of a magistrate contrary to art. 5(4) of the
Constitution is valid by virtue of art. 149, where otherwise it would
have been void as being inconsistent with art. 5(4).
•The ISA makes no provision for denial of access to legal
representation which would be inconsistent with art. 5(3).
•As such, the ISA is still subject to the rights entrenched in art. 5(3)
and art. 149 cannot be used to remove such right.
•The Singapore High Court in Lee Mau Seng (1971) was also in
agreement with this, and said that the courts would only exclude the
rights granted under Part II of the Federal Constitution if there a
clear words to that effect.
•In Jamaluddin (1989) it was held that art. 149(1) does not mention
art. 11 which is on the right to freedom of religion.
•The judge therefore held that any provision in the ISA which is
inconsistent with the provision of art. 11 of the Constitution shall be
invalid.
•In Raja Petra bin Raja Kamarudin (2009), the blogger was detained
under s. 8 of the ISA for allegedly by the minister insulting Islam
through his postings on the blog.
•The minister alleged that the posting contents were false, defaming
national leaders and thus undermined confidence and incited hatred
against the government, which could affect public order and
prejudice national security.
•Syed Ahmad Helmi J referred to Lee Kew Sang (2005), which ruled
that the substantive exercise of the minister’s discretion could not
escape judicial review if it was done in ultra vires manner.
•He ruled that a detention would only be legal if the grounds supplied
by the minister coincide with the grounds specified in the
empowering legislation.
•Thus, the minister lacked jurisdiction as the allegation against the
applicant that he had insulted Islam involved a matter that was not
under the jurisdiction of the federal government.
•The minister is not empowered by the ISA to deal with matters
pertaining to Islam.
Security Offences (Special Measures) Act
2012 (SOSMA)

•George Varughese, the President of the Malaysian Bar had stated

that that pre-charge detention under SOSMA (up to a maximum
period of 28 days), coupled with the absence of any judicial
supervision or oversight of that detention, and the frequent delay or
denial of immediate access by detainees to legal representation, is a
gross violation of the fundamental liberties protected under Article 5
of the Federal Constitution.
•SOSMA has been used to detain persons who have not engaged in
subversion or action prejudicial to public order. Dato’ Sri Khairuddin Abu
Hassan, Matthias Chang, and Maria Chin Abdullah, all of whom have been
detained under SOSMA, were in fact involved in attempts to increase
transparency and accountability of government, and participative democracy
in Malaysia.
•In the case of Dato’ Sri Khairuddin Abu Hassan and Matthias Chang, both the
High Court and the Court of Appeal have ruled that they should not have
been detained under SOSMA, thus were later discharged and acquitted.
•Both of them had to endure pre-charge detention under SOSMA merely for
lodging reports with law enforcement authorities abroad on the alleged
misappropriation of 1Malaysia Development Berhad (“1MDB”) funds.
•As for Maria Chin Abdullah, the Government released her from custody just
before the court hearing of her habeas corpus application was due to take
place.
•Former President of the Malaysian Bar, Steven Thiru, had stated that the
government had said SOSMA is a law to deal with terrorism, and was never
intended to restrict nor prohibit any peaceful and legitimate democratic
activity.
•He said that peaceful demands or activities by citizens are part and parcel of
the process of parliamentary democracy. It is the criminalisation of these
acts that is detrimental to parliamentary democracy and must be rejected.
Prevention of Crime (Amendment) Act 2017
(POCAA)

•POCAA reintroduced detention without trial and restricted

residence/internal banishment, which is regarded by many to be no
different from those contained in the Internal Security Act 1960
(“ISA”), Restricted Residence Act 1933, Banishment Act 1959, and
Emergency (Public Order and Prevention of Crime) Ordinance 1969,
all of which had been previously repealed or revoked.
•POCAA takes away the right of a detainee to appear and make
his/her case (for non-detention) before an Inquiry Officer appointed
by the Ministry of Home Affairs.
•It is this Inquiry Officer who is responsible for presenting the case for
detention to the POCB. The detainee is now deprived of his/her basic
right of natural justice to be heard at the earliest possible instance,
to know the allegations made against him/her, and to respond to
them.
•Instead, it will be the police who will now conduct the investigation
and present their report to both the Inquiry Officer and the POCB.
•This denial of due process is further compounded when a detainee is now not
able to challenge the recommendation made by the Inquiry Officer to the POCB.
•This is because the right of a detainee to know the decision of the Inquiry Officer
has been removed. An Inquiry Officer is, in effect, given absolute liberty to make
recommendations based on information submitted by the police to the POCB,
without any input from the detainee.
•There is also no right of a detainee’s legal counsel to make representations or to
appear either before the Inquiry Officer or the POCB. The POCB is, in turn, given
wide powers to affirm or reverse the Inquiry Officer’s recommendations, again
without the POCB having first heard from the detainee. Thus, the detainee is
denied the right to be heard.
•This disrespect the rule of law and natural justice.
ARTICLE 150
•In Bhagat Singh v The King Emperor LR 58 IA 169, it was said that a state of
emergency is something that does not permit of any exact definition, it
connotes a state of matters calling for drastic action.
•Art. 150 provides that it is the YDPA that proclaims emergency. Although a
literal interpretation of Article 150(1) indicates a royal discretion, the view
more consistent with a system of parliamentary democracy and constitutional
monarchy is that the powers under Article 150(1) are subject to the general
duty in Article 40(1) and 40(1A) to act on ministerial advice.
•Unless a clause explicitly confers personal discretion, all references to the YDPA
in the Constitution should be interpreted to mean “YDPA acting on advice”.
•The issue to be considered under art. 150(1) is whether the YDPA’s decision
to proclaim emergency could be questioned in the courts.
•In Stephen Kalong Ningkan v Government of Malaysia (1968), the petitioner
questioned the proclamation of emergency made for the state of Sarawak, in
which he submitted that no state of emergency existed at such time.
•Barakbah LP decided that the YDPA is the sole judge and once His Majesty is
satisfied that a state of emergency exists, it is not for the court to inquire as
to whether or not he should have been satisfied.
•However, a dissenting judgment was made by Ong Hock Thye FJ, to
which he stated that based on art. 40(1) the YDPA is not an
autocratic ruler, and in exercising his functions under the
Constitution or federal law the YDPA shall act in accordance with the
advice of the Cabinet.
•The issue of justiciability was presumed to be settled after the
insertion of clause 8 under art. 150, which provides that the
satisfaction of the YDPA shall be final and conclusive and shall not be
challenged or called in question in any court on any ground.
•In Dato’ Seri Anwar Bin Ibrahim v Public Prosecutor (2002), Haidar
FCJ decided that no challenge could be made to the continued
operation of ordinances made under art. 150.
•Although it is clear that the proclamation of emergency could not be
questioned, a question remains on the exercise of the proclamation, on
whether the YDPA could act in his discretion in proclaiming emergency.
•In Abdul Ghani Bin Ali (2001), it was decided that that YDPA must act on the
advice of the Cabinet in proclaiming emergency.
•The Federal Court was in agreement with Teh Cheng Poh (1979) and was of
the opinion that the YDPA does not have a personal discretion under art.
150(1) of the Constitution but has at all times to act on Cabinet advice.
•On issue of whether a proclamation of emergency could cease by
effluxion of time, namely when the occurrence or imminent danger of its
occurrence no longer exist, the Federal Court in Johnson Tan Han Seng
(1977) decided that with reference to art. 150(3), a proclamation of
emergency ceases to have effect only if revoked or Parliament annuls it.
•But it is also to be noted that in Teh Cheng Poh, the Privy Council
observed that a proclamation of a new emergency on the Federation as a
whole would operate to revoke a previous proclamation, if one is still in
force.
•But art. 150(2A) states that more than one proclamation of emergency
can exist concurrently, thus the view is Teh Cheng Poh is set aside.
•It was highlighted in Madhavan Nair (1975) by Chang Min Tat J that the YDPA
remained a constitutional monarch during emergency although the legislative
authority is vested in him.
•The Court in this case explained that, based on art. 150(2), upon the issuance of a
Proclamation of Emergency by the YDPA under clause (1), the legislative power
becomes vested in the YDPA, who may as long as the Proclamation of Emergency
subsists, and until both Houses of Parliament are sitting “promulgate ordinances
having the force of law if satisfied that immediate action is required”.
•The Court also stated that emergency rule which passes legislative power from
Parliament to the YDPA has not displaced his position as the Constitutional
Monarch, bound by the Constitution to act at all times on the advice of the Cabinet.
•On issue of law-making process, Chang Min Tat J in Madhavan Nair (1975)
said that the Federal Constitution does not provide any exact procedure for
promulgation.
•The Court referred to the Shorter Oxford English Dictionary which provides
the definition of promulgation as official publication of a new law.
Promulgate in turn means to expose to public view and to make known by
public declaration, especially to proclaim some law or decree.
•On publication, the Court decided that the publication of ordinances is not
subject to s.18 of the Interpretation Act which provides for a detailed mode
regarding Gazette. What is needed is simply for the ordinance to be shown to
be promulgated by the YDPA.