The Yang di-Pertuan Agong Sultan Abdullah Sultan Ahmad Shah has just consented to a state of emergency up until August 1st, 2021.
The country flirted with uncertainties for nearly a week following reports of the state of emergency being mooted by Prime Minister Tan Sri Muhyiddin Yassin and that it might be enforced back in October last year. Though the state of emergency was averted following Yang di-Pertuan Agong Sultan Abdullah Sultan Ahmad Shah’s refusal to accede to the prime minister’s request, there is much to be learned about what is an emergency, its history and the scope of powers granted to the government under emergency rule. Now, it seems that a state of emergency is back on the cards.
For that, we consult Constitution expert and human rights champion Firdaus Husni, chief human rights strategist of the Malaysian Centre for Constitutionalism and Human Rights.
What is an emergency?
An emergency in the context of the Malaysian Constitution refers to a situation where there is a threat to the country’s security, economic life or public order.
Most Malaysians know about the state of emergency from its enforcement during the communist insurgency. Have there been other times when an emergency was declared?
The Malayan Emergency was declared by the British before independence to counter the communist insurgency. Since then, as noted by Datuk Dr Gurdial Singh Nijar, other times a state of emergency was declared was in 1964 during the Indonesia-Malaysia Confrontation; in 1966 during a constitutional crisis in Sarawak involving the appointment of Sarawak’s chief minister; in 1969 in response to the racial riot which took place on 13 May 1969; and in 1977 to deal with a political crisis in Kelantan.
Under what circumstances can an emergency be enforced? What are the conditions that must be fulfilled?
The first point of reference for this must always be the Federal Constitution. Article 150(1) and 150(2) set out the circumstances. Essentially, a state of emergency can be declared when the King is “satisfied” that “a grave emergency exists” where there is a threat to the security, or the economic life, or public order. An emergency can also be declared before the actual event where there is ”imminent danger” that the event will occur. These circumstances can be either of the entire nation or any part of the country.
Can the Yang di-Pertuan Agong initiate an emergency or must His Majesty receive a motion from the prime minister?
Malaysia practises a constitutional monarch, in which the power of the King is prescribed by the Federal Constitution. Unless stated otherwise, the King is to exercise his function including making a declaration of emergency, in accordance with the advice of the cabinet, led by the prime minister. He cannot initiate an emergency on his own accord.
Does the Yang di-Pertuan Agong hold the sole prerogative to the enforcement of emergency? Does His Majesty require a consensus by the Conference of Rulers?
The King is entitled to obtain further information from the government, the Conference of Rulers or any other person or body of persons should the King wish to. The Federal Constitution does not state a requirement of a consensus by the Conference of Rulers.
What does the enforcement of emergency mean to our democracy?
A declaration of emergency would put our democracy at a peril. This is because the governing power will be concentrated with the federal government, and there will be little to no mechanism to check and balance the exercise of that power. Save for some exceptions, the Parliament can pass any laws with a simple majority, even those which would curtail our human rights.
What will happen to the lives of the general population under the emergency rule? Will there be a special decree to govern our freedom?
During a state of emergency, the government can make any laws, even those that concern our freedom, and those laws will be valid. This includes, for example, our right to life and liberty, our freedom of speech and expression, freedom of movement and freedom of association.
Will the emergency rule change the powers conferred to the Yang di-Pertuan Agong or the prime minister?
With the emergency in place, the governing power of the federal government headed by the prime minister can also extend to state governments.
How long can an emergency be continuously enforced in a period? Who holds the power to cease the state of emergency to resume normality?
A declaration of emergency can be revoked by the Yang di-Pertuan Agong or by the Dewan Rakyat and Dewan Negara. A state of emergency does not have a fixed duration. In effect, a declaration of emergency can continue to operate even though the circumstances that led to the decision to declare that emergency in the first place no longer exists.
(Hero image credit: Unsplash/ mkjr_)
This article first appeared on Prestige Online Malaysia in October 2020.