Emergency powers

Introduction
The term emergency comes from the Latin word emergo which
means ‘a condition, similar to a state of war, in which some
ordinary processes of government may be altered or suspended
to deal with an unforeseen occurrence or threat’.
Most constitutions have provision for the exercise of
emergency powers which override the normal operation of the
constitution.
Emergency powers have 3 main features:
Concentration of powers at the hands of the executive;
giving it power not available at normal circumstances
The nature of emergency power is that it is discretionary
and wide, untrammeled by ordinary constitutional patterns;
and
Has the effect of suspending the provisions for fundamental
liberties.
Introduction
In June 1948, the colonial government declared an emergency
throughout Malaya to counter insurgency by the Communist
Party of Malaya (CPM).
Because of that, the Reid Commission recommended the
insertion of emergency powers in the Constitution and the
insertion of special powers against subversion which would
operate irrespective of any emergency.
The 1948 emergency lasted up to 1960 and terrorist incidents
continued to occur right up until 1989, when the CPM
negotiated a settlement with the Malaysian government.
The Origin and Developments of
Emergency Powers
• The provisions pertaining to emergency and subversion have
been amended many times.
• 1st amendment (1960) :
• Previously, emergency laws would lapse within 15 days
unless approved by a resolution of both houses of
parliament.
• After amendment, executive was given the ability to
prolong the emergency –
• The duration of emergency
• Parliamentary control over the emergency proclamation
and laws
• 2nd amendment (1963):
• Following the entry of Sabah, Sarawak & Singapore.
• Art 150 was widened – there is no need to relate the threat to
security and economic life to the country to ‘war, external
aggression or internal disturbances’ prescribed by original provision.
• Enlarge the law-making power of parliament during the emergency -
effectively removing the division of powers between federal and
state legislatures in the original version
• Effectively made emergency laws prevail over the Constitution –
except matters concerning Muslim laws, custom of Malays and
Borneo natives, religion, citizenship or language
• 3rd amendment (1966):
• Due to political crisis in Sarawak. Case Stephen Kalong Ningkan v Tun
Abang Haji Openg & Tawi Sli (1966) 2 MLJ 187
• 4th amendment (1981):
• In Teh Cheng Poh case, Privy Council struck down a legislation
promulgated by the government under the emergency power.
• Several additions and deletions were made and including:
• The abolition of parliamentary control on emergency – the
YDPA is no longer under duty to summon parliament
• The proclamation may be issued even before the actual threat
• The permissibility of issuing overlapping emergency
proclamation without affecting the legality of the existing ones
• Giving the executive power to legislate similar to that of
parliament
• The removal of limitation on the executive’s legislative power
and now the only bar to such power is when the two houses
are assembled together
• 5th & 6th amendments (1983 & 1984):
• Power of the YDPA to declare emergency
• 1983 – government tabled an amendment which sought to
transfer the power to the PM. The YDPA refused to sign the
amendment Bill. The power was returned to the YDPA.
• 1984 – subsequent amendment was made.
Circumstances in which
emergency can be invoked
Art 150(1) of the FC – ‘If the YDPA is satisfied that a grave
emergency exists whereby the security, the economic life, or
public order in the federation or any part thereof is
threatened, he may issue a proclamation of emergency making
therein a declaration to that effect’.
Art 150(2) – such proclamation may be issued before the
actual occurrence of the threatened event, by way or
preventive action, if the YDPA is satisfied that there is
imminent danger of its occurrence.
Art 150 (2A) – introduced in 1981- allows the issuing of
proclamation on different grounds or in different
circumstances, regardless of the existence of other
proclamations; thus two or more emergency proclamation
may validly overlap, chronologically or geographically, and the
later does not impliedly revoke the earlier.
Circumstances in which
emergency can be invoked
• Stephen Kalong Ningkan v Government of Malaysia – the
Privy Council stressed the concept of emergency, ‘it is
not confined to unlawful use or threat of force in any of
its manifestations.. The natural meaning of the word
itself is capable of covering a very wide range of
situations and occurrences, including such diverse
elements as wars, famines, earthquake, floods,
epidemics and the collapse of civil government’.
Consequences of a Proclamation
1. Power of the executive to legislate emergency laws
 Art 150 (2B) – if at any time while a proclamation is in
operation, except when both houses of parliament are sitting
concurrently, the YDPA is satisfied that certain circumstances
exists which render it necessary for him to take immediate
action, he may promulgate such Ordinance as circumstances
appear to him to require’.
 Art 150 (2C) – such Ordinance shall have the same force and
effect as an Act of parliament.. until it is revoked or
annulled.. or until it lapses’.
 Art 150 (3) - A proclamation and an Ordinance under Art
150(2B) must be laid before both houses of parliament, and
if sooner not revoked, cease to have effect if annulling
resolutions are passed by both houses.
Consequences of a
Proclamation
2. Power of the parliament to legislate emergency laws
 Art 150 (5) – ‘parliament may, notwithstanding anything in
this constitution, make laws with respect to any matter, if it
appears to parliament that the law is required by reason of
the emergency’ – restrictions imposed by the Constitution or
written law are inapplicable. E.g., consent of the COR, assent
of the YDPA etc.

3. Art 150 (6) - No provision of the emergency laws can be

invalidated on the ground of inconsistency with any provision
of the Constitution.
• Art 150 (6A) - Except matters with respect to Islamic law,
Malay custom, native custom in Sabah and Sarawak, religion,
citizenship or language.
Consequences of a
Proclamation
4. The separation of the federal and state executives is
suspended.
 Art 150 (4) – the executive authority of the federation
extends to any matter within the legislative authority of
the states, and to the giving directions to state
government and state officials or authorities.

 Art 150 (7) – at the expiration of 6 months beginning

with the date on which a proclamation ceases to be in
force, any Ordinance promulgated in pursuance of the
proclamation shall cease to have effect.
Judicial scrutiny of emergency
powers
• Teh Cheng Poh v PP (1979) – the Privy Council held that
once parliament had sat, the executive power to make
regulations under emergency Ordinances, as well as the
power to enact Ordinances, lapsed.
• In the instant case, all regulations made under the
emergency proclamation since February 1971, when the
parliament was summoned, were invalidated.
• In consequence, the parliament passed the Emergency
(Essential Powers) Act 1979, operative from 20th
February 1971, to validate the Regulations and all action
taken under them.
Judicial scrutiny of emergency
powers
By Art 150 (8), introduced in 1981, it was sought to prevent the
intrusion of judicial review;
a) The satisfaction of the YDPA shall be final and conclusive
and shall not be challenged or called into question in any
court on any ground; and
b) No court shall have jurisdiction to entertain or determine
any application, question or proceeding, in whatever form,
on any ground, regarding the validity of –
i. A proclamation.
ii. The continued operation of such proclamation
iii. Any Ordinance promulgated under clause (2B); or
iv. The continuation in force of any such Ordinance.
Judicial scrutiny of emergency
powers
• Dato’ Seri Anwar bin Ibrahim v PP [2002] 3 MLJ 193 FC –
Haidar FJ decided that no challenge could be made to
the continued operation of Ordinances made under Art
150.
• Q: whether the YDPA could act in his discretion in
proclaiming emergency?
• Obiter dicta in Abdul Ghani bin Ali & Ors v PP [2001] 3
MLJ 561 – the court decided that the YDPA must act on
advice of the cabinet in proclaiming emergency.
Parliamentary scrutiny
• Parliament powers under Art 150 are ineffective for 2
reasons;
1) By definition, the executive has a majority in parliament,
which is therefore unlikely to oppose its action
2) There is not even obligation on the executive to summon
parliament. The executive can suspend the operation of
parliament indefinitely.
Internal checks
• Check on the exercise of emergency powers by the executive
itself.
• In 1984, an amendment giving the power to proclaim an
emergency to the PM instead of the YDPA had to be
withdrawn when it became embroiled in the controversy
over the royal assent.
• Fact: YDPA must act on advice. The PM cannot present
such advice to him without a decision of the cabinet.
• So, an emergency cannot be proclaimed unless the
cabinet, which comprises members of several political
parties and all races, agrees.
The use of emergency powers
1. Confrontation (1964)
 The 1st post independence emergency to be proclaimed – on the
ground of national security on 3 September 1964 to meet armed
aggression by Indonesia as a result of its objections to the
formation of Malaysia one year earlier.
 Main measure taken under this proclamation – the enactment of
the Emergency (Criminal Trials) Regulations 1964 – dispensed with
the requirement of a preliminary inquiry in criminal cases.
The use of emergency powers
2. Sarawak (1966)
 The emergency proclaimed on 14 September 1966 in relation
to Sarawak represented an entirely different kind of situation,
originating in tensions between the federal and state
government following Sarawak joins Malaysia in 1963.
 Although the ruling party in Sarawak, SNAP, was a member of
the Alliance, the CM of Sarawak, Dato’ Stephen Kalong
Ningkan, pursued an independent policy which irritated federal
leaders – caused the dismissal of Ningkan from the post of CM
& the appointment of a new CM of the federal authorities own
choosing.
 The HC had ruled that the dismissal was unlawful, Ningkan was
still the CM and the appointment of his successor was invalid.
The use of emergency powers
• The proclamation as promulgated on the ground of a
threat to the security of Sarawak.
• The Emergency (Federal Constitution and Constitution of
Sarawak) Act 1966 was passed by the parliament 6 days
after the proclamation, gave power to the Governor of
Sarawak, to summon a meeting of the Council Negri
without the advice of the CM.
• On 23 September 1966, Ningkan lost the vote on the
ensuing no-confidence motion, then finally, dismissed
from office.
The use of emergency powers
3. The May 1969
 Following the general election results on 10 may 1969, the
Alliance government had been deprived of its 2/3 majority.
 Tensions were extremely high, an incident involving Malay and
Chinese youths immediately sparked riot on 13 May 1969.
 On 15 May 1969 an emergency was proclaimed on the ground of a
threat to national security.
 Since the emergency was proclaimed at a time when parliament
had already been dissolved, and the election had been completed
in Sabah and Sarawak, there was no parliament to meet.
 The government suspended the elections, which were not in fact
completed until February 1971, and only then was parliament
summoned.
The use of emergency powers
• Among the Ordinances passed under this proclamation
are;
• the Emergency (Essential powers) Ordinance No.1 - gave
the YDPA wide powers to make any regulations;
• Emergency (Essential Powers) Ordinance No.2 - the
executive authority of the federation and the legislative
power of the YDPA were delegated to a Director of
Operation, appointed by the YDPA and assisted by the a
National Operation Council (NOC) and a CEO. Tun Abdul
Razak , the DPM, was appointed to the post of Director of
Operation, to act on advice of the PM.
• The Emergency (Security Cases) Regulations 1975 (ESCAR)-
which modified the rules relating to criminal trials’ in
security cases.
The use of emergency powers
5. Kelantan (1977)
 In 1972, PAS joined BN.
 In 1974 general election, a number of important PAS leaders
were brought into the federal cabinet by Tun Abd Razak,
including Dato’ Mohamad Asri, former PAS president &
Kelantan MB.
 After 1974 election, the tension between PAS and UMNO
started to open over the choice of Kelantan MB. Dato’ Asri
preferred Was Ismail Wan Ibrahim, however, Tun Abd Razak
preferred Datuk Mohamad Nasir. The choice of PM prevailed.
 This created a split within PAS, as a result of which Mohammad
Nasir was expelled from PAS, and then, on 15 October 1977,
lost a vote on a confidence motion in the state assembly.
The use of emergency powers
Instead of stepping down, the MB requested the regent of
Kelantan to dissolve the assembly, but the regent neither
requested the MB to resign in accordance to the motion nor
dissolved the assembly.
On 8 November 1977, an emergency was proclaimed on the
ground of security or economic life of Kelantan was
threatened.
Parliament passed the Emergency Powers (Kelantan) Act 1977,
which suspended the state Constitution and the power of the
MB and the EXCO, vested all state legislative power in the
ruler, and all state executive power in Director of government,
advised by a state advisory council, both appointed by the PM
pursuant to the Act. The PM was given the powers to give
direction to the DG, to dismiss him, and to make a regulation
to implement the Act.
The use of emergency powers
• On 12 February 1978, a Proclamation was gazette
whereby the proclamation made on 8 November 1977
was revoked and the emergency powers (Kelantan) Act
1977 was repealed.
• Full governing power were returned to Datuk Nasir. The
following day, the state assembly was dissolved upon
request by the MB to pave the way for a state election
scheduled on 11 March 1978.
• In the election, PAS won 2 seats, UMNO 22 seats, MCA 1
seat, and Berjasa 11 seats.
The use of emergency powers
6. Batu Sapi, Gerik and Bugaya
7. Proclamation of emergency January 2021
8. Sarawak August 2021
Dewan Negara approves revocation of 3 emergency
proclamations in 2011

• The Dewan Negara approved the motion to revoke three

emergency proclamations.
• The proclamations, issued by the Yang di-Pertuan Agong, are
the Emergency Proclamation 1966, Emergency Proclamation
1969 and Emergency Proclamation 1977.
• The 1969 emergency proclamation was issued on May 15,
1969, following racial riots two days earlier.
• The 1966 and 1977 emergency proclamations, issued on Sept
14, 1966, in Sarawak and Nov 8, 1977, in Kelantan,
respectively, were aimed at resolving political disputes in the
two states.
• The move to annul the emergency proclamations was made
because the conditions, which threatened security and public
order, then no longer existed.
• In accordance to Clause (7) under Article 150 of the Federal
Constitution, the emergency proclamation would still be in
effect for a period of six months from the date they are lifted.
• The lifting of the proclamations will also prevent the
government from enacting or passing emergency laws under
Article 150.