THE state of emergency expires on August 1. That is only 33 days away, but according to Minister in the Prime Minister’s Department (Law and Parliament) Takiyuddin Hassan, the government will only decide the dates for Parliament to sit following advice from Attorney-General Idrus Harun.

He also said the government will target the August-September timeline to convene Parliament as proposed by Dewan Rakyat speaker Azhar Azizan Harun and Dewan Negara president Rais Yatim.

Takiyuddin added that the notice to convene Parliament will be made after the emergency expires on August 1 and there will be 28 days’ notice of this.

So, this perhaps explains why the government is targeting the end of August or early September for Parliament to sit.

Now, unlike previous declarations of emergency – three nationwide and five localised – the January 11 emergency has what is called a sunset clause: it expires on August 1.

If the emergency lapses without the emergency ordinances being laid before both Houses of Parliament, the emergency ordinances will cease to remain in effect.

There are five altogether:

• Emergency (Essential Powers) Ordinance 2021
• Emergency (Prevention and Control of Infectious Diseases) (Amendment) Ordinance 2021
• Emergency (Essential Powers) (No. 2) Ordinance 2021
• Emergency (Essential Powers) (Amendment) Ordinance 2021
• Emergency (Offenders Compulsory Attendance) (Amendment) Ordinance 2021.

All of the above are promulgated pursuant to Clause (2B) of Article 150 of the federal constitution to combat the Covid-19 pandemic.

Article 150(3) requires the “proclamation of emergency and any ordinance promulgated under Clause (2B)” to be laid before both Houses of Parliament”.

In the case of Inspector-General of Police & Anor v Lee Kim Hoong [1979], Lee (the applicant) had been detained under the Emergency (Public Order and Prevention of Crime) Ordinance 1969.

In habeas corpus proceedings taken by Lee, it was argued that as the ordinance had not been laid before Parliament, as required by Article 150(3) of the federal constitution, it did not have the force of law.

At the hearing in the high court, the Deputy Public Prosecutor (DPP) conceded that the ordinance had not been laid before Parliament, and therefore it was held that the detention of the respondent was unlawful and he was released. The high court judge, Justice Harun, said: “Now the object of Article 150(3) is for the Yang di-Pertuan Agong to give an account, as it were, to Parliament of all things done by him during their absence. It seems to me that the requirement that ordinances promulgated during an emergency by the Yang di-Pertuan Agong shall be laid before both Houses of Parliament is a mandatory one and the effect of non-compliance is that the ordinance will cease to have effect after Parliament had sat. The learned Deputy Public Prosecutor concedes that the 1969 ordinance was not laid before Parliament. In the event, I am compelled to hold that the Emergency (Public Order and Prevention of Crime) Ordinance 1969 has ceased to have effect.”

On appeal, the Federal Court allowed additional evidence by affidavit, which showed that the ordinance had been laid before the Houses of Parliament and therefore had the force of law.

Lord President Suffian, who delivered the judgment, said: “As the ordinance has the force of law, the detention of the applicant was therefore lawful and the learned judge was in error in ordering his release. We therefore allowed the appeal and set aside the learned judge’s order.”

However, it is important to note that the Federal Court did not hold Justice Harun erred in his judgment that “the requirement that ordinances promulgated during an emergency by the Yang di-Pertuan Agong shall be laid before both Houses of Parliament is a mandatory one and the effect of non-compliance is that the ordinance will cease to have effect after Parliament had sat.”

As matter of fact, the Federal Court’s finding of facts that the ordinance “has been properly laid before both Houses as is required by the constitution” and therefore had the force of law reinforces Justice Harun’s decision – that is, it is mandatory for any ordinance promulgated under Article 150(2B) to be laid before both Houses of Parliament.

The effect of non-compliance is that the emergency ordinance will cease to have the force of law after Parliament has sat.

If the government agrees to the proposal by the two speakers to have a special sitting of Parliament in early August followed by a hybrid Parliament in late August or the first week of September, the five emergency ordinances will cease to have the force of law after the special sitting of Parliament, unless the ordinances are laid at the special sitting of Parliament. This means both houses will have to sit in early August.

So, how does the government plan to ‘compensate’ for the loss of legislation necessary to combat the pandemic between the special sitting and the full sitting of Parliament in late August or early September?

What will happen to the RM10,000-compound for offences under the Prevention and Control of Infectious Diseases Act 1988 (Act 342), among others?

The emergency is expiring and the government must plan ahead and not react after listening to the people. – June 29, 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.