Lawyers on revoking ordinances: PN removed itself from power, shows lack of transparency

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The government’s revocation of ordinances effective July 21 did not follow constitutional procedure, lawyers have said.

Lawyer Mohamed Haniff Khatri opined that Perikatan Nasional committed a faux pas in revealing it has “revoked” all Emergency ordinances in an alleged bid to avoid the matter being put to the vote.

In other words, he said PN removed itself from power.

Under the Emergency, the Yang di-Pertuan Agong had given the administrative power vested in him to the government via Section 11 of the Emergency (Essential Powers) Ordinance 2021.

The ordinance stipulates that the prime minister and cabinet are to continue exercising executive powers during the Emergency period.

With this important section gone, Haniff argued that Malaysia is effectively left with no government until Aug 1.

“The power to administer the nation during the Emergency was vested by the Agong to the government under Muhyiddin Yassin pursuant to Section 11.

“When they say they have repealed or revoked (all ordinances) from July 21, this means Section 11 is gone.

Azhar Mahfof/The Star

“So, the constitutional crisis is – we do not have any institute who can administer the nation from July 21 to Aug 1,” he explained.

According to the Federal Constitution, Haniff said administrative powers during an Emergency are returned to the Agong.

“The power goes back to the Agong. So, if within the next 10 minutes, the king appoints you or me to run the country, this is valid until Aug 1,” he told Malaysiakini.

De facto Law Minister Takiyuddin Hassan’s announcement on the revocation this morning shocked Dewan Rakyat.

He also said it was, therefore “no longer relevant” to vote to annul the ordinances.

Without having to vote on the Emergency ordinances, PN saved itself from a defeat since many of its members were absent from the House.

However, Haniff argued that the plan had backfired.

“You are the one holding power, you are saying ‘we have revoked it’. That means you are saying there is nobody running the country from now until Aug 1.

“The party which carried out the process – which is wrong – they themselves have committed suicide,” he added.

Haniff, who often represents Parti Pejuang Tanah Air (Pejuang) chairperson Dr Mahathir Mohamad, was one of several lawyers who questioned the revocation process.

Emergency ordinances can only be revoked in one of two ways: Either the Agong revokes it and a gazette is published or both Parliament houses vote to annul it.

Despite Takiyuddin’s announcement, there is no record of the revocation gazette on the Attorney General’s Chambers website.

The July 21 date suggests that the revocation was done during last Wednesday’s cabinet meeting. The prime minister usually has an audience with the Agong before such meetings.

In the absence of a gazette on the matter, lawyer New Sin Yew questioned if the revocation was valid and if Takiyuddin “misled” the Dewan Rakyat with his announcement.

“Any revocation must be signed by the Agong. It was the Agong who promulgated it so it should be him that revokes it. Cabinet cannot act unilaterally and bypass the king.

“If he had revoked it, then it needs to be published in the gazette for it to take effect. It will only take effect and come into operation from the date of the publication in the gazette.

“Until these are done, it cannot be said that there has been revocation,” he said.

Lawyer Malik Imtiaz Sarwar similarly questioned in a tweet if the “revocation” was legitimate.

DAP-linked lawyer Syahredzan Johan further questioned the reason for the government waiting six days to inform the public about this.

“In that period, how many people have been compounded, arrested, had items seized and publications taken down based on laws that the government claims it has ‘revoked’?

“Will the government pay compensation to those who have been implicated under these cancelled Emergency ordinances?” he asked in a Facebook post.

Seth Akmal/TMI

“The rakyat have the right to know if there are any changes in the law through gazettes or at least an announcement.

“This is not like sending a message in a WhatsApp group and asking people to forward it. These laws affect 32 million Malaysians,” he added.

Delaying the publication of the revocation of the six Emergency ordinances in the federal gazette and springing the announcement in Parliament shows a lack of transparency by the government, lawyer Andrew Khoo said today.

He said that while gazettes are not always published immediately upon the promulgation of a law, such an important issue, which concerns national interest, should not be treated in this manner.

“Delaying publication in the gazette shows a certain lack of commitment to be open and transparent. Especially on something of great national importance as this.

Seth Akmal/TMI

“If what the minister says is true, and the government has decided on July 21 to advise the Yang Di-Pertuan Agong to revoke the ordinances, then it is incumbent on the government to gazette the instrument of revocation without any delay.

“Why has this not been done? Why did they not produce a copy of the gazette showing the order of revocation? Or is this all an afterthought on the part of the government?”

Takiyuddin’s announcement took MPs by surprise, as the tabling of the ordinances was listed in the order paper for the Dewan Rakyat’s special five-day sitting which began today.

The lawmakers had wanted to vote to annul the ordinances and noted that the Agong had even decreed that the Emergency proclamation and ordinances be tabled for MPs to debate, as required by Article 150 of the federal constitution.

However, Takiyuddin said that since they had been revoked, “the issue of annulment is no longer relevant”.

Another lawyer, Tiara Katrina, said the revocation of the ordinances should only be deemed effective once published in the gazette.

“Unfortunately, many since the announcement have checked and no such revocation can be found to have been published. This is the basis upon which I would argue any attempts to revoke the Ordinances now should be considered a ‘backdated revocation’,” she said.

Tiara added that if the ordinances were validly revoked, the public could challenge penalties imposed by way of the ordinances on them after July 21.

“The authorities cannot and could not have exercised powers under ordinances which at that time no longer existed. Those decisions would then be liable to legal challenge.

“The public would have a strong basis to challenge the legality of the issuance of compounds.

“Whether they can successfully sue the authorities in a civil action for compounding them is a separate issue, and will attract a series of other complicated questions, remembering that government officers are protected by some immunity if they acted in good faith, even if ultimately mistaken on the law,” she said.

Tiara also noted that while the Agong has the power to revoke the ordinances, this can only be done before parliament sits, as the law-making authority transfers from the Agong back to the parliament after that point.

“Any attempts to advise the king to exercise His Majesty’s Emergency powers to revoke ordinances now, is arguably contrary to the constitution. When the king’s power to promulgate ordinances ends, we must read that as meaning that the power to revoke those ordinances also ends,” she said.

Former prime minister Najib Razak, meanwhile, accused the Perikatan Nasional (PN) government of cancelling the ordinances in secrecy because it feared facing the vote in the Dewan Rakyat.

Nazir Sufari/TMI

“The PN government thought that if the ordinances were cancelled, then they will not have to be debated, voted, and passed in parliament,” he said on Facebook.

Muhyiddin is widely believed to have lost his majority in parliament after Umno withdrew its support for the Bersatu president on July 8.

Critics speculate that it is for this reason that PN has not allowed debates and voting to take place in the current Parliament sitting.