Lawyers: No Necessity to Declare Emergency

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Constitutional lawyers stress that there is no need to place the country under an emergency law as the Prevention and Control of Infectious Diseases Act (Act 342) already gives the state wide-ranging powers.

They said this in the wake of Prime Minister Muhyiddin Yassin having an audience with the Yang di-Pertuan Agong in Kuantan today, with the meeting believed to be over the use of special emergency powers to curb the rising number of Covid-19 cases.

Lawyer Andrew Khoo said the government had yet to “exhaustively utilise” the full range, extent and powers of all the provisions under the Prevention and Control of Infectious Diseases Act.

Tighter reporting could be enforced under Section 10, which could lead to more severe remedial action being undertaken by the authorities.

Despite the country recording more than 800 cases in five of the last six days, lawyer Lim Wei Jiet said the government did not have any valid reason to declare an emergency.

“Declaring movement controls, Act 342 allows it. Punishing violators, Act 342 allows it. Border control, the immigration (department) has the power,” Lim told FMT.

“So, the question arises: Why do we even need to consider an emergency?

“What more can declaring a state of emergency do to address the situation?”

Warning that a national emergency would seriously dent the country’s already ailing economy, Lim said investors would lose confidence in the Malaysian market.

Lim also said many business contracts might have force majeure clauses that would be triggered in an emergency, creating uncertainty between parties.

(Force majeure means a party to a contract is prevented from fulfilling his or her obligations due to unforeseeable circumstances.)

National Security Council Act

Khoo, who is also the Bar Council’s constitutional law committee co-chair, said the government could also use the National Security Council Act and declare “security areas”, instead of declaring an emergency under Article 150 of the Federal Constitution.

“Article 150 allows you to suspend Parliament,” Khoo told FMT.

“The declaration of emergency could be interpreted as an attempt to obstruct the work of Parliament and not have the Budget presented, debated and put to a vote.

“Remember what PM Boris Johnson tried to do in the UK last year over Brexit by attempting to prorogue Parliament? This was held unlawful by the courts.

“If the budget is defeated, the PM must resign.

“If you declare an emergency, you can pass the budget by an emergency ordinance, without the need for a vote.”

Budget 2021 is set to be tabled on Nov 6.

Meanwhile, retired judge Gopal Sri Ram said under Article 40 (1) of the Federal Constitution, the Yang di-Pertuan Agong is under duty to act on the advice of the prime minister, the Cabinet or a minister.

He said following the advice by the prime minister, the King must declare a state of emergency.

“However, the advice given by the prime minister can be judicially reviewed,” he warned.

Sri Ram said there were three types of emergencies — a total curfew as was declared in 1969 (during the deadly race riots) to preserve public order; a limited curfew where social activities will be restricted during particular hours; and one where there would be no restrictions on movement (or limited restriction) but with Parliament suspended for a certain period.

Lim agreed with Sri Ram, stating that Article 150 should be read with Article 40.

“If the government sells the narrative that the declaration of emergency is the Yang di-Pertuan Agong’s decision, don’t buy it,” said Lim.

“Some people may say the King himself makes the final call, but you need to read Article 150 with Article 40, which says that any decision the King makes has to be made pursuant to advice from the prime minister.

“At the end of the day, the prime minister has to make the decision and he has to be fully responsible for it.”