ON July 27, 2021, Malaysians woke up to the fact that all emergency ordinances passed during the state of emergency were revoked on July 21.

All the major newspapers in Malaysia had reported that Minister in the Prime Minister’s Department (Law and Parliament) Takiyuddin Hassan had informed the Dewan Rakyat the previous day that the government had decided to cancel all emergency ordinances formulated during the proclamation of emergency, based on Article 150(3) of the federal constitution.

This revelation has created various questions.

Can the government revoke the ordinances by merely making such a declaration? Was the revocation made in accordance with the constitution?

It is argued that the declaration the minister made is mere hogwash and the six ordinances remain valid irrespective of what was said in Parliament.

Two reasons are provided in support of this view:

Article 150(3) of the constitution states as follows: “A Proclamation of Emergency and any ordinance promulgated under Clause (2B) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance,[emphasis mine] but without prejudice to anything previously done by virtue thereof or to the power of the Yang di-Pertuan Agong to issue a new Proclamation under Clause (1) or promulgate any ordinance under Clause (2B).

In Mark Koding v Public Prosecutor [1982] 2 MLJ 120, the Federal Court decided that the legality of an ordinance ‘will cease to be in operation only if [it is] revoked by His Majesty or if both Houses of Parliament resolved to annul the Proclamation; without such a positive act, it remains in force (Article 150(3)).’

Based on Article 150(3) and Mark Koding’s case, it is submitted that ordinances made during emergencies can be revoked only in two ways: ie, by the king or both Houses of Parliament. Any other method will not revoke the ordinances.

Second, the revocation was also not made by the king on the advice of the cabinet (reading Article 150 and Article 40 of the constitution). See Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50.

It was reported yesterday, that the Comptroller of the Royal Household of Istana Negara had stated: “…His Majesty expresses great disappointment over the statement made on July 26 that the government has revoked all emergency ordinances promulgated by His Majesty, although the revocation has not yet been given royal assent.”

The king has also emphasised that “Article 150(2B), read with Article 150(3) of the constitution, clearly provides that the power to enact and repeal emergency ordinances rests with the king” which was not done so in this case.

Based on the arguments above, it would seem that the ordinances which were passed during the emergency are still valid and effective.

One final point to note. By misleading Parliament and the king, Takiyuddin may be referred to the Committee of Privileges for contempt of the House under Standing Order 36(12) of the Dewan Rakyat. – July 30, 2021.

* Mark Goh is a senior law lecturer at Help University.

* 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.