LAWS made during the state of emergency will stop being in force on February 1 next year if the emergency ends on August 1 and parliament is not convened before then, a constitutional lawyer said.

Lawyer Andrew Khoo said Article 150(7) of the federal constitution provides that any ordinance made under a proclamation of emergency remains valid for six months from when the proclamation ceases to be in force.

Article 150(7) states that any law made while the emergency was in force shall cease to have effect “at the expiration of a period of six months beginning with the date on which a proclamation of emergency ceases to be in force”.

It should then follow that emergency ordinances or laws made without parliamentary approval, such as the compound increase for standard operating procedure violations to RM10,000, the power for the government to tap into the National Trust Fund and government spending outside the budget and without parliamentary oversight, will cease by February 1 next year.

Khoo also highlighted Article 150(3), which states that the proclamation of emergency and any ordinance promulgated thereunder shall be brought before both houses of parliament.

“It does not specifically mention a timeframe. So the assumption is that it will be done within a reasonable time after Parliament is permitted to open,” Khoo said when asked to explain what would happen to the laws made during the emergency.

Lawyer Lim Wei Jiet also said the ordinances will no longer have effect once the emergency is over.

“It is only valid during the period of an emergency. This is regardless of whether parliament convenes or otherwise.”

However, lawyer Tiara Katrina Fuad said there are two schools of thought on when emergency ordinances expire.

One that agrees with Khoo relies on the definition of the word “shall” in Article 150(3), which implies that there be no arbitrary delay in bringing the ordinances before Parliament.

“The other school of thought focuses on Article 150(6), which states that any ordinances passed during an emergency can be inconsistent with any provision of the constitution.”

When will the emergency end?

The February 1, 2022 expiry for laws made during the emergency is calculated from August 1, 2021, the date the Yang di-Pertuan Agong said the emergency will cease.

But as to when the emergency will end, Tiara said the best conclusion is that “those with the power to invoke an emergency also have the power to revoke an emergency.”

Khoo, meanwhile, said Malaysia had lived under three proclamations of emergency from 1969 until December 2011, when the government under then prime minister Najib Razak finally rescinded the three proclamations.

“(The emergency ordinances) remained as law because they were not repealed, just rarely used,” another lawyer, Vince Tan Hoo Seh, said.

“Parliament might not even debate it hence it will last so long as it is not repealed and the enforcement part of it lies with the executive discretion.

“They can totally choose not to enforce it,” Tan added.

If there are violations of federal laws and the constitution, a judicial review is the mechanism to check and balance the authority exercised by the executive.

“If the executive acts beyond the powers, an order of mandamus (to order the executive to fulfil their duty) can be sought in court.

“This will apply when the executive refuses to table the emergency ordinance to be debated in court as per Article 150(3), whereby ‘shall be laid’ (before Parliament) is mandatory.

“All laws are presumed to be constitutional unless successfully challenged. The burden lies on the party saying it’s unconstitutional to prove the same in court,” Tan said. – July 1, 2021.

Editor’s note: This story has been amended to remove the parts which stated that the August 1 expiry is not mentioned in the ordinance promulgating the emergency.