THE word “emergency” has no exact definition. According to Lord Dunedin in the case of Bhagat Singh & Ors The King Emperor, it connotes a state of matters calling for drastic action.

The natural meaning of the word itself is capable of covering a very wide range of situations and occurrences, including such diverse events as wars, famines, earthquakes, floods, epidemics and the collapse of civil government. (Lord MacDermott in Stephen Kalong Ningkan V Government Of Malaysia [1968] 2 MLJ 238).

Most emergencies – even the most exceptional and novel – can be managed effectively within the existing legislative framework. The exceptional or novel ones, though, may require new legislation or amendments to existing legislation in order to support responses to the emergencies.

Two scholars – one a professor of political science and the other a professor of politics and law – once wrote: “Advanced democracies do not necessarily need to use constitutional powers when confronting emergencies.

“They often prefer to deal with emergencies through ordinary legislation. Such legislation may delegate a great deal of authority to the executive and may be enacted for temporary periods.

“And there may be a sense that the legislation is in some ways exceptional. But however unusual it may be, emergency legislation remains ordinary within the framework of the constitutional system: it is an act of the legislature working within its normal competence.” (see John Ferejohn and Pasquale Pasquino “The law of the exception: A typology of emergency powers” [2004] 2 IJCL 210).

Even in democracies whose constitutions contain provisions for emergency powers – like Malaysia – these powers are not used. Singapore is an example where constitutional provision similar to Article 150(1) of the Federal Constitution is not, and has not thus far been, invoked to deal with the Covid-19 pandemic, notwithstanding that the pandemic is within the natural of meaning of the word “emergency” as enunciated by Lord MacDermott above.

Ferejohn and Pasquino offered two possible reasons, one of which being that “it was possible that most emergencies can be successfully managed by the operation of the ordinary legal-constitutional system. That is, an emergency that might have required the invocation of emergency powers a century ago, can now be handled effectively by more or less ordinary policing techniques, beefed up with a few extra powers.”

The learned scholars, however, offered their own explanation:

“We think that an explanation for the disuse of constitutional emergency powers must lie, in part, in the development of a new legal model for dealing with emergencies. A new model of emergency powers – the legislative model –has evolved over the past half century, at least for the advanced or stable democracies. The legislative model handles emergencies by enacting ordinary statutes that delegate special and temporary powers to the executive.”

Such legislative model emergency powers can be seen in several common law jurisdictions, of which Malaysia is one. For example, Singapore’s Infectious Diseases Act – following amendments in 2019 – provides for a minister to declare a public health emergency if he is “satisfied that there is an outbreak or imminent outbreak of an infectious disease that poses a substantial risk of a significant number of human fatalities or incidents of serious disability in Singapore.”

Besides enabling the declaration of public health emergency, the amendments in 2019 to the Act included several provisions to “delegate special and temporary powers to the executive” as explained by Ferejohn and Pasquino.

Umno deputy president Mohamad Hasan’s recent statement on the state of emergency that was proclaimed last week is, therefore, well founded in law.

According to Tok Mat, as he is popularly known, “it would be more appropriate for the government to declare a ‘health emergency’, while also introducing a specific ordinance for such a purpose.”

Indeed, it should be a specific legislation in the form of an Act of Parliament or amendments to the Prevention and Control of Infectious Diseases Act 1988 (Act 342).

The government had ample time to do it during the two parliamentary sittings in July-August (26 days) and November-December (29 days) last year. The latter was significant as it came just a week after the Yang Di-Pertuan Agong refused to accede to the prime minister’s request to declare a state of emergency nationwide in October.

As it is also, the provisions in the Emergency (Essential Powers) Ordinance 2021 relating to independent special committee (section 2), power to take temporary possession of land, building or movable property (section 3), demand for use of resources (section 4), compensation (section 5) and directions for treatment, immunization, isolation, observation or surveillance (section 6) are provisions that may be made in ordinary statues, that is in a new Act of Parliament or by way of amendments to Act 342.

Countries like Singapore, New Zealand and Australia – all common law jurisdictions like Malaysia – have shown that the legislative model does work in combating the Covid-19 pandemic.

And importantly, it does not render the constitution and parliament dysfunctional, as rightly pointed out by Tok Mat. – January 19, 2021.

*Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.