ARTICLE 74(1) of the federal constitution states:

74. (1) Without prejudice to any power to make laws conferred on it by any other Article, parliament may make laws with respect to any of the matters enumerated in the federal List or the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule).

Item 7 to List III (Concurrent List) of the Ninth Schedule of the federal constitution states:

7. Public health, sanitation (excluding sanitation in the federal capital) and the prevention of diseases.

The Covid-19 pandemic is currently being dealt with under the Prevention and Control of Infectious Diseases Act 1988 (Act 342).

If public health or prevention of disease was meant to be a grave emergency which warrants a proclamation of emergency, the drafters would have in all likelihood included the same in Article 150 (1) of the federal constitution. 

The fact that  public health or prevention of disease has been purposely kept out of Article 150(1) and expressly put in the concurrent list of items to which both parliament and the state legislative assemblies may make laws on, it must by necessary implication mean that parliament must function in dealing with public health and prevention of disease.

With all due respect, the federal constitution does not contemplate for law relating to public health and prevention of disease to be made by the YDPA in an emergency situation. Hence, why Article 150 (1) only states the three situations for  a grave emergency to exist;  the security, or the economic life, or public order in the Federation or any part thereof is threatened.

Learned scholar Professor Shad Faruqi pointed out, however,  that the Privy Council in the case of Stephen Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 238 held:

“But the word ‘emergency’ as used in article 150(1) cannot be confined to the unlawful use or threat of force in any of its manifestations. While article 149 of the federal constitution is aimed at stopping or preventing subversion of that character, the terms of article 150 are much less restricted. Although an “emergency” to be within that article must be  not only grave but such as to threaten the security or economic life of the Federation or any part of it, 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. As Lord Dunedin observed when delivering the judgment of the Board in Bhagat Singh & Ors The King Emperor LR 58 IA 169; ILR 12 Lah 280; [1931] MWN 601; AIR 1931 PC 111; 32 CrLJ 727, “A state of emergency is something that does not permit of any exact definition: it connotes a state of matters calling for drastic action….”



Notwithstanding that the Privy Council did say that emergency is capable of covering epidemics (and we can safely say that would include pandemics), can it not be argued that there are express provisions in the federal constitution on laws that may be made for public health or prevention of disease by parliament , implying parliament must sit. In fact, it has already made law  ie Act 342  in 1988, and is currently being used for Covid-19. Consequently, can it not be further argued that part of Stephen Kalong Ningkan could be distinguished from the current state of matters? Perhaps Stephen Kalong Ningkan may be applicable today if it is apparent that Act 342 is not suitable to deal with Covid 19, and the government cannot manage Covid-19. That does not seem to be the case because there are measures already in place. A request for emergency on this ground is an outright admission by the current government that they no longer are able to cope and deal with Covid-19 by making laws and enforcing them. I do not think that is the narrative of the government..

As for the issue that a proclamation by the YDPA cannot be questioned or challenged, let us look at Article 150(8) of the federal constitution.

Article 150 (8) states:

(8) Notwithstanding anything in this constitution— 
(a) the satisfaction of the Yang di-Pertuan Agong mentioned in Clause (1) and Clause (2b) shall be final and conclusive and shall not be challenged or called in 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 under Clause (1) or of a declaration made in such Proclamation to the effect stated in Clause (1); 
(ii) the continued operation of such Proclamation; 
(iii) any ordinance promulgated under Clause (2b); or
(iv) the continuation in force of any such ordinance.

In essence, the satisfaction of the YDPA cannot be challenged or called into question and no court shall look into the direct challenge into the validity of the proclamation by the YDPA.

However, nowhere in  the federal constitution does it say that the  advice given and and the basis of the advice given cannot be challenged or called into question.

Therefore, it is humbly submitted that the giving of advice is justiciable.

Lord Diplock in the Privy Council case of Teh Cheng Poh v PP [1979] 1 MLJ 50 said this at page 52 Para C to E left:

“Although this, like other powers under the constitution, is conferred nominally upon the Yang di-Pertuan Agong by virtue of his office as the Supreme Head of the Federation and is expressed to be exercisable if he is satisfied of a particular matter, his functions are those of a constitutional monarch and except on certain matters that do not concern the instant appeal, he does not exercise any of his functions under the constitution on his own initiative but is required by Article 40(1) to act in accordance with the advice of the cabinet. So when one finds in the constitution itself or in a federal law powers conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affair exists or that particular action is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the cabinet, or the opinion or satisfaction of a particular Minister to whom the cabinet have delegated their authority to give advice upon the matter in question.”

The correct position is reference to YDPA’s satisfaction is in reality the satisfaction of the cabinet, or a minister in charge.

So one would ask what happens when the cabinet (or the minister in charge) gives advice to the YDPA?

Article 40(1) states:

40. (1) In the exercise of his functions under this constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the cabinet or of a minister acting under the general authority of the cabinet, except as otherwise provided by this constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the cabinet. 

Article 40(1A) makes it even clearer:

(1a) In the exercise of his functions under this constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.

In other words, the YDPA does not seem to have a choice.

It is humbly submitted that the advice given by the cabinet (or a minister) to the YDPA is justiciable and therefore, if that advice so given is found to be unlawful, the natural consequence would be that it would render the proclamation null and void without the satisfaction of the YDPA being challenged or called into question, or there being a direct challenge on the validity of the proclamation by the YDPA, thus being in line and not violating Article 150(8).

In other words, no one is questioning the YDPA, but rather the advice given to him by the cabinet.

Similarly, should the YDPA be advised to prorogue parliament under Article 55(2) of the federal constitution, that advice, too, shall be justiciable.

In R(on the application of Miller) v The Prime Minister, Cherry & Ors v Advocate Genereal for Scotland [2019] UKSC 41, Lady Hale as the President of the Supreme Court at the outset said:

1. It is important to emphasise that the issue in these appeals is not when and on what terms the United Kingdom is to leave the European Union. The issue is whether the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August 2019 that parliament should be prorogued from a date between 9th and 12th September until 14th October was lawful. It arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a “one off”. But our law is used to rising to such challenges and supplies us with the legal tools to enable us to reason to a solution.

In conclusion, the federal constitution has its check and balances, and therefore any attempt to abuse its provisions for cloaked reasons will ultimately fail.

I stand corrected. – October 25, 2020. 

* Puthan Perumal is an advocate and solicitor.

* 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.