IN “Malaysia should consider ‘legislative model’ emergency for floods”, I cited the arguments of John Ferejohn and Pasquale Pasquino that most emergencies – even the most exceptional and novel – can be managed effectively within the existing legislative framework.

Countries do not need to use constitutional powers when confronting emergencies. Emergencies can be dealt with through ordinary legislation (“The law of the exception: A typology of emergency powers” [2004] 2 IJCL 210).

I cited Singapore, New Zealand and Australia – which have common law jurisdictions like Malaysia – as examples.

Singapore, in particular, has a constitutional provision similar to article 150(1) of our Federal Constitution. However, it was not, and has not been, invoked to deal with the Covid-19 pandemic, notwithstanding the 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 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, by order, a public health emergency.

A civil defence emergency is another kind of emergency that may be declared by the minister in Singapore. This is found in section 102(1) of the Civil Defence Act 1986. A civil defence emergency is defined as “any fire, explosion, earthquake, oil spill, eruption, flood, storm, hazardous materials incident or other happening (whether or not attributable to an attack by an enemy or to any warlike act) that causes or may cause destruction of or damage to property or loss of life or injury or distress to persons or that in any way endangers the safety of the public in Singapore or in any part thereof” – section 2 of the act.

Section 102(1) states if at any time it appears to a minister that a civil defence emergency has occurred or may occur in any part or district of Singapore, the minister may declare a state of civil defence emergency exists in that part or district. The minister must immediately give public notice of every declaration of a state of civil defence emergency and the declaration must be published in the gazette as soon as possible.

Section 102 has a sunset clause in subsection 3 – that is, a state of civil defence emergency for any part or district terminates on the expiry of the seventh day from the time the state of civil defence emergency is in force. The minister may extend the duration for such further periods as the minister thinks fit, but only with the approval of the president, as in section 102(4).

During a state of civil defence emergency, police and the Civil Defence Force commissioner have special powers necessary to carry out civil defence measures and for the preservation of human life or property, to:

(a) Direct any person to render any assistance to the force to save life in immediate danger;

(b) Direct the evacuation of any area, building or place, and the exclusion of persons from any area, building or place, and in the exercise of that power may remove or cause to be removed a person who does not comply with a direction to evacuate, or a person who enters or is found in any area, building or place in respect of which a direction for the exclusion of persons has been given;

(c) Remove from any place, vehicle, structure or thing that is impeding civil defence operations and to facilitate its removal may use such force as is reasonably necessary or may break into any such vehicle;

(d) Enter, and, if necessary, break into any place, building, premises or land where he or she believes on reasonable grounds it is necessary to do so for saving life or preventing injury or rescuing injured or endangered persons, or for facilitating the carrying out of urgent measures with respect to the relief of suffering and distress;

(e) Restrict the movement of persons and close to traffic any road, street, path, private street, private way, service lane, waterway, right of way or access way or other way or close any public place.

Why the special powers? During an emergency, attention is quickly turned to the disaster area. An immediate response is to mitigate the impact of the disaster. Emergency teams will be mobilised, which unfortunately can be haphazard. Although the country may have its emergency response plan, the chaos that can follow in the wake of disasters cannot be ignored.

The authorities, for one reason or another, both at national and local level, are sometimes excluded from the early phases of the emergency response. It is therefore laudable to have such special powers as the above, without which each responding team to a disaster may act according to its own protocols. This will hinder a proper response to an emergency.

Malaysia’s counter-legislation – the Prevention and Control of Infectious Diseases Act 1988 and the Malaysia Civil Defence Force Act 1951 – do not delegate the authorities to declare a state of emergency such as a public health emergency or a civil defence emergency. It must be appreciated that such delegation, however unusual it may be, is not out of ordinary as it is within the framework of a constitutional system. It is, as Ferejohn and Pasquino argued, an act of the legislature working within its normal competence.

The power to declare a state of emergency and the special powers that come with it are lent, not granted.

Let’s consider “lending” such powers to authorities when those authorities are satisfied a state of emergency has occurred. – January 1, 2024.

* 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.