Why royal consent is important in the revocation of emergency ordinances


ON July 26, 2021, Parliament was finally convened after numerous demands were made by all levels of society. Nonetheless, when the opposition tried to push through a vote over the annulment of the Emergency Ordinances, law minister Takiyuddin Hassan stunned the Dewan Rakyat when he declared that the Emergency Ordinances have been revoked since July 21.

Such revocation can be seen as a smart trick played by PN in preventing their ruling power from being challenged and truncated. Since the emergency was already revoked, there was no necessity for Parliament to vote over the annulment and therefore, the ruling government would not risk collapsing.

It was definitely a head-on blow for the opposition as there was no prior notice nor was the revocation gazetted for the announcement of the cancellation of the Emergency Ordinances. That Umno, an aligned party of the ruling government, was ignorant of this further raised questions.

Article 150(1) of the federal constitution states that “emergency” refers to threats to the security, economic life or public order in the federation or any part thereof and the Yang di-Pertuan has the federal power to declare emergency after receiving advice from the prime minister. Although the genuine reason behind the declaration of our current emergency was always in doubt, certainly, the prime minister had the power to advise the king to promulgate an emergency in the name of “curbing Covid-19” and thus, the declaration brought us to today’s question.

Then, Article 150(3) provides two situations where a proclamation of emergency can cease to exist:

  1. If it is revoked by the Yang di-Pertuan Agong
  2. If both Houses of Parliament annul it by resolutions

Well, obviously, since our current emergency was revoked even before it was laid down before the Parliament where MPs never had a chance to question the ordinances, it can only be cancelled through the first alternative, which is the emergency was nullified by the Yang di-Pertuan Agong.

As Malaysia is a common law country that practices the doctrine of stare decisis, it is of utmost importance for us to refer to the relevant decided cases, if any. Fortunately, the case of Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50 decided by the Privy Council in 1979 does lend us a hand on this matter. To make things clear, a quote propounded by the honourable Lord Diplock must be highlighted:

“The power to revoke, however, like the power to issue a proclamation of emergency, vests in the Yang di-Pertuan Agong, and the constitution does not require it to be exercised by any formal instrument. In their Lordships’ view, a proclamation of a new emergency declared to be threatening the security of the Federation as a whole must by necessary implication be intended to operate as a revocation of a previous Proclamation, if one is still in force.”

Essentially, the Privy Council clarified that the Yang di-Pertuan Agong, as the symbolic ruler and the head of state of Malaysia has the power to revoke the emergency and this is why the consent obtained from the king plays a vital role in cancelling the emergency. Besides, although the revocation can be done without a formal instrument, there must be a necessary implication made to indicate that such an emergency has been annulled.

For such implication, the court provided an example where a declaration of a new emergency may suggest that the previous emergency was revoked. However, it is humbly submitted that this view might not be appropriate anymore with our current federal constitution as the insertion of clause (2A) in Article 150 in 1981 had enshrined that more than one emergency can exist concurrently if they are issued on different grounds or in different circumstances.

Now, back to the present situation, although the emergency may be terminated without a formal instrument where the announcement can even remain unpublished in the gazette, the key point to be noted is the king must, nevertheless, approve the revocation of the emergency in the first place. Furthermore, taking into account that there was no relevant implication or incident to imply that such emergency has been revoked prior to the commencement of Parliament, the royal consent weighs a lot in proving the validity of the annulment of the emergency.

In fact, it is extremely essential to manifest evidence that the emergency was validly revoked. Not only because that the voting session of the Parliament in nullifying the emergency would indirectly open the Pandora’s box in demonstrating whether the ruling government still holds the majority support of the MPs, but it is also crucial to the public too as if the emergency was revoked, all the fines issued to the offenders after July 21 will be of no effect. Therefore, the public does not have to pay for their wrongdoing if the violation was done after July 21, when the emergency was annulled.

In short, in today’s case, the royal consent is the most important ingredient in revoking an emergency. Hence, since the Comptroller of the Royal Household had stated that His Majesty was very disappointed to what was happened in the Parliament, which shows that the king had not consented to the annulment, only God, our de facto law minister and his comrades know the secret behind this move of invalid revocation of the emergency. – July 30, 2021.

* Cheah Zhi Qian reads The Malaysian Insight.

 

 

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight.


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Comments


  • Let us not forget furthermore, that in October 2020 it was the Agong that rejected a declaration of emergency for the first time, saying it was not needed at the time.

    So consent was needed last year but not now?

    Did not act on the advise last year but must do so now?

    Posted 1 month ago by Stephen Tan · Reply

    • Thank you for your comment, Mr Stephen.

      Firstly, in interpreting the constitution, we must not read an article in isolation but we must read it in light with other constitutional provisions stated in the constitution. Hence, for the declaration of emergency, it is settled that the Agong must act on the advice of the PM/Cabinet by reading Article 150(1) together with Article 40(1) and Article 40(1A). (Refer to STEPHEN KALONG NINGKAN v TUN ABANG HAJI OPENG & TAWI SLI (NO 2) in 1967 and TEH CHENG POH V PUBLIC PROSECUTOR in 1979)

      Then, in October 2020, some argued that the PM did not make an 'advice' to the Agong but instead he made a 'request' and therefore the Agong is entitled to give his view that the emergency was not necessary during that time. Nevertheless, sadly, the PM does not bring this case to court and thus we have no clue about the details.

      However, it is clear that when the PM/Cabinet INSIST/ADVICE the King to declare an Emergency in 2021, the King must act on the advice and declare the Emergency. Thus, it brought us to the Emergency today.

      Therefore, to conclude, generally, the Agong must follow the advice provided by the PM/Cabinet (no matter it is a declaration or a revocation of Emergency) UNLESS the matter falls under the prerogative of the Agong under Article 40(2).

      I hope my two cents is helpful to you, thank you!

      Posted 1 month ago by Cheah Zhi Qian · Reply