THE question as to why the government did not declare a flood emergency, especially in Johor, despite the critical situation the state was in, was raised yesterday in parliament.

In response, Prime Minister Anwar Ibrahim said that for now, there was no need for the federal government to declare a disaster emergency. Such a move is only necessary when conventional methods fail to resolve the problem.

In 2021, I wrote that “legislative model” emergency powers were good enough to combat the Covid-19 pandemic. 

Most emergencies – even the most exceptional and novel – can be managed effectively within the existing legislative framework. The exceptional or novel ones, though, may require new legislation or amendments to existing legislation in order to support responses to the emergencies.

“Such legislation may delegate a great deal of authority to the executive and may be enacted for temporary periods. And there may be a sense that the legislation is in some ways exceptional.

“But, however unusual it may be, emergency legislation remains ordinary within the framework of the constitutional system: it is an act of the legislature working within its normal competence.” (see John Ferejohn and Pasquale Pasquino “The law of the exception: A typology of emergency powers”) 

Even in democracies like Malaysia, whose constitutions contain provisions for emergency powers, these powers are not used.

Singapore is an example. Its constitution has a provision similar to article 150(1) of the Federal Constitution. However, it has not been invoked to deal with the Covid-19 pandemic, notwithstanding that “pandemic” is within the natural meaning of the word “emergency”.

The republic, instead, resorted to section 17A of the Infectious Diseases Act 1976 which allows the appropriate minister, if he is satisfied that there is an outbreak or imminent outbreak of an infectious disease that poses a substantial risk of a significant number of human fatalities or incidents of serious disability in Singapore, to declare, a public health emergency.

Section 17A was inserted into the act in 2019.

The use of the provision illustrates what Ferejohn and Pasquino argue – that it is “possible that most emergencies can be successfully managed by the operation of the ordinary legal-constitutional system. That is, an emergency that might have required the invocation of emergency powers a century ago, can now be handled effectively by more or less ordinary policing techniques, beefed up with a few extra powers.”

It is what is called the “legislative model” – a new model of emergency powers – which has evolved over the past half century. The legislative model handles emergencies by enacting ordinary statutes that delegate special and temporary powers to the executive.

Another example is New Zealand, which declared a national state of emergency after Cyclone Gabrielle swept across the country’s north, bringing widespread flooding and leaving tens of thousands of people without power.

“This declaration will enable the government to support the affected regions, provide additional resources as they are needed, and help set the priorities across the country for the response.

“A national state of rmergency gives the national controller legal authority to apply resources across the country in support of a national level response,” Emergency Management Minister Kieran McAnulty said.

The minister is empowered under section 66 of the Civil Defence Emergency Management Act 2002 (CDEMA) to declare state of national emergency the whole of New Zealand or any areas or districts if at any time it appears to the minister that an emergency has occurred or may occur, and the emergency is of great extent, magnitude or severity.

The CDEMA also allows for declaration of state of local emergency under sections 68 and 69.

A third example is Australia, which is a federation like Malaysia. There is no single “emergency” law in Australia which gives any one government – federal or state – all the power to formulate and implement a national response.

However, the federal government has powers and functions in various federal laws which may be exercised during states of emergency to assist the states and territories in the federation to respond to and manage an emergency. 

Under the federal Biosecurity Act 2015, a human biosecurity emergency can be declared where it is reasonably necessary to prevent or control a disease posing a severe and immediate threat of harm.

The act allows the federal health minister to declare a human biosecurity emergency, for example, to prevent or control the Covid-19 pandemic, for no longer than three months. However, the period may be extended for up to three months, and the three-month extension can be used more than once.

Countries such as Singapore, New Zealand and Australia, among others – all common law jurisdictions like Malaysia – have shown that the legislative model has worked to deal with and manage emergencies.

We can learn from these countries by considering and adopting the same model. – March 8, 2023.

* Hafiz Hassan reads The Malaysian Insight.