DELAYING the publication of the revocation of the six emergency ordinances in the federal gazette and springing the announcement in Parliament shows a lack of transparency by the government, a lawyer said today.

Andrew Khoo said that while gazettes are not always published immediately upon the promulgation of a law, such an important issue, which concerns national interest, should not be treated in this manner.

“Delaying publication in the gazette shows a certain lack of commitment to be open and transparent.  Especially on something of great national importance as this.

“If what the minister says is true, and the government has decided on July 21 to advise the Yang Di-Pertuan Agong to revoke the ordinances, then it is incumbent on the government to gazette the instrument of revocation without any delay.  

“Why has this not been done? Why did they not produce a copy of the gazette showing the order of revocation? Or is this all an afterthought on the part of the government?” Khoo told The Malaysian Insight.

De facto Law Minister Takiyuddin Hassan told the Dewan Rakyat this morning that six emergency ordinances passed during the state of emergency since January 11, had been revoked on July 21.

No gazette to this effect, however, was found on the website of the Attorney-General’s Chambers.

Takiyuddin’s announcement took MPs by surprise, as the tabling of the ordinances was listed in the order paper for the Dewan Rakyat’s special five-day sitting which began today.

The lawmakers had wanted to vote to annul the ordinances, and noted that the Agong had even decreed that the emergency proclamation and ordinances be tabled for MPs to debate, as required by Article 150 of the federal constitution.

However, Takiyuddin said that since they had been revoked, “the issue of annulment is no longer relevant”.

Another lawyer, Tiara Katrina, said the revocation of the ordinances should only be deemed effective once published in the gazette. 

“Unfortunately, many since the announcement have checked and no such revocation can be found to have been published. This is the basis upon which I would argue any attempts to revoke the Ordinances now should be considered a ‘backdated revocation’,” she said.

Tiara added that the ordinances would also cease to have effect under three conditions. The first is an annulment through a vote in parliament. The second is if a revocation date for the ordinances was expressly stipulated at the point of promulgation. The third is upon the expiry of six months after the end of the emergency.

The state of emergency, which came into force on January 11, expires on August 1. The ordinances passed during this period however, have no specific expiry date. 

The ordinances passed pertain to emergency powers that allow the government to raise fines for Covid-19 standard operating procedure violations, take over private healthcare facilities, and utilise funds in the National Trust Fund (KWAN) without parliamentary or state legislative assembly oversight.

Tiara added that if the ordinances were validly revoked, the public could challenge penalties imposed by way of the ordinances on them after July 21.

“The authorities cannot and could not have exercised powers under ordinances which at that time no longer existed. Those decisions would then be liable to legal challenge.

“The public would have a strong basis to challenge the legality of the issuance of compounds. 

“Whether they can successfully sue the authorities in a civil action for compounding them is a separate issue, and will attract a series of other complicated questions, remembering that government officers are protected by some immunity if they acted in good faith, even if ultimately mistaken on the law,” she said. 

Tiara also noted that while the Agong has the power to revoke the ordinances, this can only be done before parliament sits, as the law-making authority transfers from the Agong back to the parliament after that point.

“Any attempts to advise the king to exercise His Majesty’s emergency powers to revoke ordinances now, is arguably contrary to the constitution. When the king’s power to promulgate ordinances ends, we must read that as meaning that the power to revoke those ordinances also ends,” she said.

Lawyer Haniff Katri earlier questioned the legitimacy of Prime Minister Muhyiddin Yassin’s cabinet to continue wielding executive powers between the period of July 21 and August 1, adding that the revocation has created the issue of a power vacuum. 

One of the ordinances concerned – the Emergency (Essential Powers) Ordinance 2021 – states that executive power for as long as an emergency is in force is to be held by “the Prime Minister and the cabinet existing immediately prior to the issuance of the Proclamation of Emergency”.

“If this section of the ordinance has been cancelled, the government has no power during the (remainder of the) emergency until August 1.

“According to the ordinance, there is no power to be given back to the government before January 11 to continue ruling,” Haniff said in a video on Facebook, referring to the date the declaration of emergency was enforced.

Former prime minister Najib Razak, meanwhile, accused the Perikatan Nasional (PN) government of cancelling the ordinances in secrecy because it feared facing the vote in the Dewan Rakyat.

“The PN government thought that if the ordinances were cancelled, then they will not have to be debated, voted, and passed in parliament,” he said on Facebook.

Muhyiddin is widely believed to have lost his majority in parliament after Umno withdrew its support for the Bersatu president on July 8. 

Critics speculate that it is for this reason that PN has not allowed debates and voting to take place in the current Parliament sitting. – July 26, 2021.