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Former AG: Declaring Emergency would be unconstitutional

KUALA LUMPUR: A proclamation of emergency under Article 150 of the federal constitution has tremendous negative consequences on the nation's body politic and the exercise of freedoms and liberties of Malaysians.

Hence, the reluctance to rush into declaring an emergency, said former Attorney-General Tan Sri Tommy Thomas.

"Because the ramifications of an emergency are massive, the constitution has placed many safeguards against its use," he said, adding that the checks and balances built into Article 150 is in the form of 13 sub-articles within it.

Thomas said article 150(1) provides that if the Yang di-Pertuan Agong was satisfied that a grave emergency exists, whereby the security, economic life or public order in Malaysia is threatened, he may issue a proclamation of emergency.

He said that Malaysia was a constitutional monarchy, and the Agong acts on the advice of the prime minister insofar as Article 150 was concerned.

"Hence, the true decision-maker is the prime minister, but the king has a residual discretion. In other words, it is not automatic that every time a prime minister desires a proclamation, the Agong must agree to it. The Agong is entitled to seek the advice of the Conference of Rulers, or indeed anyone whose advice the Agong values," he said in a statement here today.

He added that for Article 150(1) to come into play, the conditions in the country or the circumstances were such that:

(i) A grave emergency exists;

(ii) whereby security;

(iii) economic life; or,

(iv) public order;

(v) is threatened.

Thomas said none of these terms is defined in the Federal Constitution.

"Thus, they must be given their natural and ordinary meaning. Additionally, the draftsmen of the constitution placed an important safeguard: it is not any emergency, but one that is "grave". This distinguishes it from a crisis or an "ordinary" emergency. It must be serious in nature, scale or magnitude," he said.

He said that it was difficult to find a single rational argument to support a case that there is a "grave emergency" today in Malaysia.

"Covid-19 has been with us since January. When it suits this government, it has boasted about how well they combated and contained the spread of Covid-19. And, they have objective grounds to make this claim, having regard to the performance of other countries. Hence, on a relative and comparative scale, Malaysia has handled Covid-19 well.

"But the same government cannot then claim that overnight, Covid-19 has became so "threatening" that we have a 'grave emergency'."

"However, terrible Covid-19 is in Sabah, it does not warrant the declaration of a national emergency," he said.

Rather, Thomas believes that the actual reason behind proposed emergency imposition is that the current government is not confident that the Budget 2021 would be passed by the Dewan Rakyat.

He said this in turn would result in a lack of confidence in his government and as such they must resign.

"Let me briefly consider the three preconditions in Article 150(1): security, economic life or public order. It is impossible for the prime minister to argue that the security of Malaysia is in any way affected by whether he continues to remain in office. Likewise, public order. That leaves "economic life". This precondition has no application. Note that "health" is not a ground. This is hardly surprising. Nations have, over centuries, been affected by plague, tuberculosis, the Spanish flu and other contagious diseases. But they do not justify a national emergency.

"Ample public health and sanitisation measures can be put in place under the ordinary laws of the land, without resorting to emergency powers. In these circumstances, there are no legal grounds for the proclamation of an emergency in Malaysia today. It would, therefore, be unconstitutional," he said.

Thomas said although an ouster clause is found in Article 150 (8), having regard to the development of constitutonal law in seminal cases like Indira Gandhi and Semenyih Jaya, it can certainly been argued that the courts can review a decision to declare an emergency.

Nearly half a century ago, the Teh Cheng Poh case considered the limits of the power of the executive to declare emergencies. A recent foreign example is illustrative of the worldwide trend in common law: the Brexit decision of the Supreme Court in the United Kingdom, he added.

"In my opinion, a proclamation of emergency in present circumstances is justiciable before our courts," he said.

He added that a supreme irony is that the prime minister and his finance minister desire Parliament to be suspended, and for Budget 2021 to be enforceable by executive action.

This again,Thomas said, would be unconstitutional because it would violate three sub-articles in Article 150 itself.

He said Article 150(3) requires the proclamation to be laid before both Houses of Parliament. More significantly, the proclamation shall cease to have effect if a resolution is passed by both Houses "annulling such a proclamation".

Article 150 (5), he said, provides that while a proclamation is in force, "Parliament may make laws if it appears to Parliament the law is required".

And finally, Article 150 (9) states that the Houses of Parliament should be regarded as sitting "only if the members of each House are respectively assembled together and carrying out the business of the House, he said.

"It is plain and obvious that proclaiming an emergency does not have the intended result. Parliament continues to perform its duties. Hence, the Dewan Rakyat should sit in the normal way for the important Budget session in early November, as scheduled," he said.

He also said that any emergency move would also undermine the nation's economic well-being.

"The rating agencies will immediately down-grade our ratings, which mean that borrowing costs will become more expensive, and perhaps even more difficult. The share market will plunge, the ringgit will plummet and business confidence will be shattered," he said, adding that the "economic life" of Malaysia demands no emergency period.

For these reasons, he implored Prime Minister Tan Sri Muhyiddin Yassin to withdraw state of emergency option and instead let the 222 members of the lower house of Parliament to resolve the matter.

"If that means the prime minister and his political opponents have to spend next week horse-trading and bargaining for inclusion in a true unity government, they must undertake that with a spirit of consensus and compromise," he said.

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