2. 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.
3. 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.
4. 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
5. • 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 Sili (1966) 2 MLJ
187
6. • 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
7. • 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.
8. 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.
9. 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’.
10. 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.
11. 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 wit respect to Islamic law,
Malay custom, native custom in Sabah and Sarawak, religion,
citizenship or language.
12. 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.
13. 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.
14. 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.. Or of a declaration made
ii. The continued operation of such proclamation
iii. Any ordinance promulgated under clause (2B); or
iv. The continuation in force of any such ordinance.
15. 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.
16. 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.
17. 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.
18. 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.
However the government fails to revoke the emergency when it
became clear that there was no further threat to national security,
although there is every reason to suppose that it has either lapsed
by effluxion of time or been superseded by the May 1969
emergency proclamation.
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.
19. 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.
20. 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.
21. 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.
22. The use of emergency powers
• The 1969 proclamation has never been revoked.
• 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 assissted 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.
23. 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
24. 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.
25. 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.
