Proclamations of Emergencies: A means to Executive Supremacy
UNIVERSITY OF MALAYA
FACULTY OF LAW
COMPARATIVE CONSTITUTIONAL LAW
Proclamations of Emergencies: A means to Executive Supremacy
“…emergency government once taken root is a tough plan to uproot”-
C K Allen
Humeirah F
LGA050031
Semester 2
21st February 2006
• Introduction
Four emergencies have been declared since the birth of the Federal Constitution of Malaysia in 1957 . Prior to that, an emergency was also declared in 1948 due to Communist terrorism which lasted 12 years. Many constitutional issues remain questionable in the evaluation of emergencies. Some of them are the constitutionality of emergency powers passed by parliament; whether the Yang di-Pertuan Agong may act on his own accord in being subjectively satisfied that there exists a state of emergency; and the question whether the Agong’s delegated power to promulgate Ordinances is valid when Parliament is not in session. Other matters such as the institutionalization of states of emergencies and the prerequisites for such proclamations and the reluctance of courts to decide their validity are equally contentious. All these have paved the way for the Executive to accede to immense powers and compromise the system of checks and balances put in place.
• What is an emergency?
An emergency is a state of affairs that warrants the adoption of special measures whereby the rule of law is displaced and superseded by emergency laws, which are normally provided for in the Constitution of the country. However there are also instances such as when Junta regimes take over or during coup d’etats where emergency powers are evoked beyond the scope of the constitution.
Through the deliberations of the International Law Association in its 61st Paris Conference in 1984, a larger scope in the field of handling public emergencies by national governments was given. There an emergency was defined as “an exceptional situation of crisis or public danger, actual or imminent, which affects the whole population or the whole population of the area to which the declaration applies and constitutes a threat to the organized life of the community of which the state is composed.” Lord MacDermott in Stephen Kalong Ningkan v Govt of Malaysia stated:
“Although an emergency to be within Art 150 of the Constitution must be not only grave but such as to threaten the security or economic life of the Federation or any part of it the natural meaning of the word itself is capable of covering a vary wide range of situations and currencies, including such diverse events as wars, famines, earthquakes, floods, epidemics and the collapse of the civil government.”
The above has been echoed through the acts of other states in the world. For example, on 29 April 1984 April the President of Sudan declared a state of emergency which allowed him to suspend all constitutional right provisions and to grant extraordinary powers to the police and military. This happened after he had sought to rewrite the Sudanese constitution to make himself the supreme political and religious leader but was thwarted by determined opposition. In order to press ahead with his Islamization program while avoiding charges that he was violating the constitution, he declared a state of emergency .
Proclamations of emergencies are sensitive in that they give certain discretion to the Executive organ of the government to deny the public certain freedoms and rights in order to exercise control and restore peace and security. The problem crops up when the Executive exercises too much discretion and impinges on fundamental rights and freedoms, giving rise to a people who behaves and acts very restrictedly gripped with fear of reprisal. This is further exacerbated by the unethical, unlawful and often unconstitutional practice of certain governments to institutionalize these emergencies, when these have been expressly designed to be temporary. What is worse, is when provisions on these emergencies in the Constitution are tampered with through amendments to pave the way for further executive supremacy, giving rise to what Hobbes’ termed a “Leviathan Republic” or what is known as a “Banana Republic” in common parlance.
In Bhagat Singh & Ors v King Emperor , Lord Dunedin in the Privy Council admitted that “ a state of emergency is something that does not permit of any exact definition: it connotes a state of matters calling for drastic action…”
In Malaysia, as it will be understood through this paper, emergencies constitute the favourite toys of the Executive with which they have secured their authority through the tides of times… and constitutional amendments. In this context reference may also be made to Government of Malaysia v Mahan Singh where Lee Hun Hoe CJ merged the common law doctrine of necessity with emergency powers under Art 150. In his Lordship’s opinion art 150 gave wide powers to the Yang di pertouan Agong “so wide that he would in the interest of the nation…act as he thought fit.”
• Constitutional Supremacy: A humbug
The Westminister model can either be based on parliamentary sovereignty as in UK or Constitutional supremacy, as in Malaysia. This is clearly laid down by art 4 of the Constitution . As a matter of fact it was observed by Raja Azlan Shah F.J in Loh Kooi Chon v Government of Malaysia
“The Constitution is not a mere collection of pious platitudes. It is the supreme law of the land embodying 3 basic concepts: One of them is that the individual has certain fundamental rights upon which not even the power of the State may encroach. The second is the distribution of sovereign power between the States and the Federation, that the 13 states shall exercise complete sovereign power in local matters and the nation in matters affecting the country at large. The third is that no single man or body shall exercise complete sovereign power, but that it shall be distributed among the Executive, Legislative and Judicial Branches of government, compendiously expressed in modern terms that we are a government of laws, not of men.”
Written law can thus be invalidated by the Constitution under three instances: firstly in the case of Federal and state written law where Parliament in the former case and State Legislature in the latter case have no power to make law; secondly Federal and State written law may be invalid where it violates any provision of the Constitution and thirdly in the case of State written law, where it is inconsistent with Federal law .
The authority of the Constitution is however diluted by two features which enable constitutionally inconsistent provisions to be enacted. The first is the amending power conferred on Parliament under s 159 of the Constitution. It is to be noted that this power in enhanced by the composition of the Parliament in favour of the ruling party. However the discussion of this matter is beyond the scope of this paper . Secondly powers under s 150 which are conferred on the Executive to declare emergencies.
Whilst it is established by English courts that Parliamentary Supremacy entails the adherence to the principle that it is not for them to question laws passed by Parliament , it seems that this approach is willfully ignored in the context of Malaysian Constitutional Supremacy. Indirectly the principles enshrined in the Constitution have been questioned and re questioned through the amendments made by Parliament. Some authors inevitably question whether the Malaysian model follows the doctrine of Parliamentary Supremacy rather than Constitutional Supremacy.
In Malaysia, the overlapping powers of the legislature and the executive under the Cabinet system imply that at the end of the day, after all due deduction, power of amending laws remains in the hands of the Executive.
• Evolution of Emergencies in Malaysia
In 1888, the first Public Order instrument was made by way of an Order in Council in the Malay States . This was enacted to empower the British Authorities to surmount problems related to security and public order arising mainly from the activities of secret societies of the Gee Hin and the Hai San and the local rivalries in the tin mines, rubber estates and shanty towns of the states of Perak, Selangor, Negeri Sembilan and Pahang.
The first formal emergency legislation was introduced as The Emergency Enactment 1914. It was tailored to suit the situation of emergency that arose during the First World War. The power of arrest and detention without trial , the curtailment and rationing of foodstuffs and the control of printed matter and publications were all included.
In 1930 the British authorities enacted the Public Emergency Act which gave wide discretionary powers to the High Commissioner in making regulations in respect of emergencies of public danger. By 1941 all the states in the Malay Peninsula had already enacted uniform legislation pertaining to emergency or public danger. However they were operational only on a month to month basis as the local situation required. It is interesting to note that under s. 3(1) of the Emergency Enactment 1930 it is stated that emergencies can be proclaimed… “provided that no such regulation shall alter any existing procedure in criminal cases or confer any right to punish by fine or imprisonment without trial.”
The communist terrorists then became a threat to security in the late 1940’s. The insurrection of the Malayan Communist Part (MCP) in 1948 warranted a new set of executive powers and this is how the Emergency Ordinance 1948 came into being. The date of expiration of the proclamation was meant to be after 60 days from the date on which it was issued. Unlike the previous emergency enactments which preserved the Criminal Procedure Code, the 1948 Ordinance allowed the High Commissioner to make regulations which had the effect of altering the normal procedure of criminal cases. A wide power was thus given to the High Commissioner to make laws pertaining to the maintenance of “public order and preservation of life of the community, as well as the ability to make arbitrary arrest and detention . The power to make regulations relating to the conduct of criminal trials was exercised to enforce the Emergency (Criminal Trials) Regulations, 1948 which gave way to the Emergency (Criminal Trials) Regulations 1964 ( ECTR 1964) and the Essential (Special Cases) Regulations 1975 (ESCAR 1975)
The end of the Emergency in 1960 was marked by the advent of the Internal Security Act 1960 to substitute the powers exercisable by the Emergency Regulations 1948, which was made under s 149 of the Constitution. The justification of this rather overbearing enactment was the continued presence and threat of communist terrorists. The numerical strength of the terrorists had declined however by June 1960 to about 583, all in the northern part of the Peninsula. This certainly casts doubt on the need for the ISA in the first place.
Indonesia’s opposition regarding the formation of Malaysia led to the first proclamation of emergency after Merdeka in 1964.The Malaysian Parliament then enacted the Emergency (Essential Powers) Act 1964. This Act transferred powers into the hands of the Agong to make laws during emergencies. Pursuant to s 2 of the EEPA the Agong promulgated the ECTR 1964, a criminal procedure code which is devoid of various elements of ‘fair trial” . Moreover regulation 3 of the ECTR provides that the Regulations “shall have effect notwithstanding anything to the contrary contained in any written law.”
The third state of emergency was declared in 1969 following the racial riots. The Emergency (Essential Powers) Ordinance 1969 was promulgated under art 152(2). Art 150(4) which extends the application of an emergency law to any matter within the legislative authority of a State was used by the Prime Minister to all states that the Legislative Assembly was not to be summoned to meet until such a date as was to be determined by the Agong.
It is often stated that the New Economic Policy, piling important privileges onto Malays, could not have been furthered without the backing of emergency rule which was used to quell any disapprobation by adversaries.
The authority of the EEPO 1969 was such that the Agong had wide powers to make laws on any issue pertaining to the maintenance of peace and security and the life of the community. It enabled him to delegate power to any authority to make laws and by-laws. Section 4 gave the overarching power to regulations to have effect notwithstanding anything inconsistent with the provisions of the Constitution or any other written law. In 1975, the Agong promulgated the Essential (Special Cases) Regulations 1975 which followed closely the provisions of the former ECTR 1964. The continued existence of this instrument is questionable.
On 17 May 1969 the Emergency (Essential Powers) Ordinance No 2 1969 was promulgated. A director of Operations was appointed and made responsible for exercising the executive authority of the Federation. He had to comply with the PM’s advice and be assisted by a National Operations Council consisting of persons appointed by himself.
Federal executive authority was furthered in Kelantan through the Emergency Powers (Kelantan) Act 1977 during the emergency then. Legislative authority of the State in matters which were supposedly within the legislative authority of that state were conferred upon the state ruler, to the exclusion of the Legislative Assembly. Tun Suffian, former Lord President of Malaysia explained that the act transferred all executive and legislative powers in the hands of the PM, indirectly through the Director of Government.
It can therefore be remarked that the proclamation of emergencies undertaken by the Agong as pointed out above has been primarily the furthered by the intention of the Executive since the Agong’s role in Malaysia can be compared to that of the Queen of England : “ A mere figure head standing in the tower of London to be gazed at by sight-seers ”.
• The most amended provision of the Constitution: Art 150 – A mark of the Executive’s authority over the Constitution
The original intention of the Reid Commission in drafting the Constitution was to confer very limited and transitory powers on the executive to make emergency laws. These were provided under Part XI of the Reid Draft . The commission used such words as “the Federation must have adequate power in the last resort to protect…essential national interests. But in our opinion infringement of fundamental rights or of state rights is only justified to such an extent as may be necessary to meet any particular danger which threatens the nation.” (words originally not italicized) It is interesting to note that the restriction in the first part of the sentence, as has been italicized is further qualified by the second set of italicized words which makes it clear that the use of emergency laws as highlighted above were clearly not within the purview of the Reid Commission’s intention.
A summary of the provisions of the Reid Commission and Art 150 subsequently enacted will be made below:
Reid Commission Merdeka Constitution Comment
1. Art 138(1):procalamation of emergency after Govt satisfied and Yang di-Pertouan Agong issues. Art 150(1): The Yang di-Pertouan Agong must be satisfied of the existence of an emergency and proclaim it. Does not make much of a difference because the Agong at any rate functions according to the advice of the Cabinet: Art 40
2. Art 138(3) the emergency proclamation was to end after two months unless before expiration it has been approved by resolutions in both Houses of Parliament. Imported exactly into the Constitution except that a difference made between an ordinance and a proclamation. The latter was to have a lifespan of two months whereas the former a life span of 15 days. This showed the more cautious approach of the Merdeka Constitution compared to the Reid Commission’s enactments.
3. Clause 4(a) of Art 138 provided that executive authority of the Federation extended to matters within the legislative authority of Parliament to legislative authority of state. Parliament was authorized to limit duration of a State Legislature, the suspension of an election. The king was also given power when the Parliament was not sitting to promulgate ordinances having the force of law.
4. Clause (5) stipulated that an emergency will be validated despite repugnant to fundamental liberties.
5. Clause (6) provided that any law made by Parliament in emergency was cease to operate after 6 months. All these provisions were incorporated into the Merdeka Constitution
The six amendments to Art 150:
1. 1960: the time limit of 2 months and 15 days were deleted from clause (3). This was replaced by a provision that the matter should be laid before Parliament and continued to be in force if not sooner revoked by the Agong.
2. 1963: the words “whether by way or external aggression or internal disturbance after the words “is threatened” under clause (1) in the MErdeka Constitution were deleted. It also expanded powers of Parliament to make laws if an emergency requires it. However these powers did not extend to Muslim law, Custom, native law or custom in a Borneo state, religion, citizenship or language.
3. 1966: Parliament was enabled by virtue of the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 to amend the Constitution of Sarawak in any matter if an emergency called for it. This gave the central Parliament power which clearly violated art 41 of the State Constitution which required an Ordinance by the legislature of Sarawak before an amendment was made to its constitution.
4. 1976: these were not so significant: The term “muslim” was substituted with “islamic” whenever the term appeared in the constitution.
5. 1981:These greatly enlarged the powers exercisable by the executive in times of emergency and deviated completely from the original intent of the legislators of the Merdeka Constitution. This included the term a threat to “public order”, different from “Public danger” in ERO 1948
6. It now reads : “ If the Yang di-Pertouan Agong proclaims a state of emergency under art 150 he must be satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect. Under clause (2) the emergency must not be actual but can be imminent. This enables the executive to declare an emergency at any time and in any part of the country without having to satisfy the conditions set out under clause (1). It also clearly allows for multiple Proclamations. Clause (3) provides that any proclamation and any ordinance promulgated under Clause 2B shall be laid before both Houses. This gives the impression that check and balances exist by virtue of Parliament’s role. Reality is such that since the executive predominates the Parliament, it amounts to ‘supervision of the executive by the executive” .
• Institutionalization of states of emergency: the continuation of Executive domination
The declaration of Emergencies results in two parallel legal regimes subsisting at one time; one the parliamentary system with a Cabinet which is answerable to an elected Parliament, and the other the emergency regime where the Government may at its option invoke its emergency powers and undertake action without any prior consultation or acquiescence of the Parliament. Since Emergency powers cannot be invalidated as being unconstitutional pointed above, this gives overriding, overbearing and excessive powers to the executive thus leading to the collapse of the whole system of separation of powers which relies heavily on a set of checks and balances.
In 1979, a decade after the proclamation of Emergency on 15 May 1969, the Law Minister, Dato Hamzah Abu Samah declared:
“Some people may claim that everything is peaceful and normal- that there does not appear to be a state of emergency; that there is no more need for the existence of the Proclamation of Emergency or the proclamation of the security area. That this appears to be so is not owing to the non-existence of the state of emergency but to the efforts of the government and the security forces in keeping the state of emergency under control. Let it be known there are still hidden dangers lurking around and within our midst simmering under the surface… The Proclamation of Emergency in 1969 has had to continue and will have to continue because it cannot be gainsaid that there existed and still does exist a grave emergency whereby the security and economic life of the country has been and continues to be threatened.”
The continued state of emergency has never been a matter of concern on the political agenda even after the recent general elections in 2003. The state of emergency therefore remains a debate for the academic lawyers, constitutionalists and soothsayers who may wish to enlighten us on what this augurs for us, Malaysians.
Relentless efforts and repeated attempts have been made by courts to rule upon the existence/inexistence of the state of emergency. This was curtailed in January 1979 by the Emergency ( Essential Powers) Act, 1979 which precludes the court, inter alia, from questioning the continued operation of any Proclamation issued by the Yang di-Pertouan Agong under an Act of Parliament . A final and definite ouster was added by the Constitution ( Amendment) Act A514 of 1981 which, inter alia, purported to oust the emergency and/or the continuance of a state of emergency . Art 150 therefore has undergone 6 important amendments that have blurred the once discernible borders of emergency proclamations.
But the twilight of constitutionalism in Malaysia has been further achieved by limiting the Parliamentary intervention in reviewing the Proclamation of emergencies. The original provision that the proclamation should lapse automatically after two months unless approved by a resolution passed by both Houses was replaced by the current provision which imposes a positive duty on the House to revoke the proclamation by a resolution. It has thus paved the way for facilitating the institutionalization of emergencies…To ensure that no stone has been left unturned, the constitutional amendment of 1981, mentioned above, deleted the former Clause 2 requiring the Yang di Pertouan Agong “to summon Parliament as soon as may be practicable” for the purpose of revoking the proclamation.
The current state of affairs is that by the new Clause 6, six subjects only are beyond the realm of emergency laws, namely (i) Islamic law, (ii) the custom of Malays, (iii) native law and custom in Sabah and Sarawak, (iv) religion, (v) citizenship, and (vi) language. One could scoff at this factual observation which is instrumental in revealing the importance accorded by the Malaysian government to its priorities.
The legislative role of the parliament and the enforcement of laws by the judiciary is undermined due to the continued state of emergency in Malaysia and the vast powers conferred by art 150. The very purpose of sanctifying the constitution is defeated and reliance on its provisions would shake the faith of any citizen in the authority of the Constitution.
In Thomas Jefferson’s wise words:
“In questions of power, let no more be said of confidence in man, but bind him down from mischief by the chains of Constitution.”
Now that the “chains of Constitution” are loosely held, and the Executive is nonchalantly escaping all attempts of control and discipline, Mischief is obviously on the run and there is and will be no stopping it unless Responsible Governance steps in.
• The policy of non-interference of the judiciary: Executive absolutism or Judicial Cowardice?
Malaysia until now experiences many instances of direct transplanting and supplanting of laws from western countries into its rather complex legal system. This copy-cat practice has not been spared from criticism. While these models, whether in the form of political philosophies or statutory enactments have been inserted into the current political and legal systems, they have failed to be tailored accordingly. We therefore find even Montesquieu’s concept of the Separation of powers transposed directly into Malaysian Constitutional law, failing radically. The system of checks and balances does not operate effectively. One succinct example would be how the judiciary withdraws in any matter questioning the validity of proclamations of emergencies..
Lord Parker in The Zamora stated: “Those responsible for national security must be the sole judges of national security. It would be obviously undesirable that such matter should be made the subject of evidence in a court of law or otherwise discussed in public .” Sixty years later, Lord Denning defended this approach in R v Secretary of State ex parte Hosenball :
“There is a conflict between the interests of national security on the one hand and the freedom of the individual on the other. The balance between these two is not for a court of law .”
The tactful approach of Lord Denning can be discerned in the above whereby he points out the inherent conflict between the two which is an evil in itself, but leaving it to the executive to deal with the formidable task of choosing the lesser of the two evils.
Eng Keock Cheng v Public Prosecutor is an interesting case whereby the legality of declaring emergencies under the Constitution was probed. The appellant here was convicted for illegal possession of fire arms under s 57(1) of ISA and sentenced to death. The power to enact emergency regulations, punishable under the ISA as in this case, were argued to be wrongly devolved to the Yang di-Pertouan Agong as this was inconsistent with the Constitution.
Wylie CJ held that the true effect of art 150 of the Constitution was that Parliament had during an emergency, the power to legislate on any subject and to any effect even if inconsistent with the Constitution and this also extended to fundamental liberties. He also stated that this power comprised the ability to delegate part of the power to legislate to the Yang di Pertouan Agong or any other authority despite the existence of a written constitution. Similarly in Sidin v Public Prosecutor the same challenge to the Emergency (Criminal Trials) Regulations 1964 was brought up because it empowered the Agong’s delegate (the public prosecutor) to determine by an arbitrary act which persons should be tried under the ECTR 1964.
However a bold move by the Privy Council can be considered in Teh Cheng Pong v Public Prosecutor where the appellant had been charged under the ISA 1960 for possessing arms in a security area and tried under special procedures laid down by the Essential (Security Cases) Regulations 1975 and he was found guilty and sentenced to death. He challenged the validity of the security area proclamation made by the Yang di-PErtuan Agong under the ISA 1960. Lord Diplock set aside the conviction and sentence of the appellant and remitted the case to the Federal Court for further considerations as to whether or not to order a new trial. Lord Diplock held that once Parliament had sat, the executive power to make regulations under emergency ordinances, as well as power to enact ordinances lapsed so that all regulations made under the Emergency Proclamations since February 1971, when Parliament was summoned, was invalidated.
Subsequently the Government’s legal advisers acted promptly and Parliament passed the Emergency (Essential Powers) Act 1979 which came into effect on 20 February 1971, in order to validate the regulations and all actions taken under them. And by way of the Constitution (Amendment) Act 1981, cl 8 to art 150 of the Federal Constitution was introduced in a noble attempt to whittle down the impact of Teh Cheng Poh. Clause (b) to art 150 was introduced to prevent intrusion of judicial review.
Hence it can be concluded that art 150(8) of the Federal Constitution prevents the courts from adjudicating the validity of an emergency proclamation or ordinance. It also prevents the court from questioning the continued validity of a proclamation or ordinance. The courts too cannot make any ruling that an emergency has come to an end nor can the courts hold that the reasons for the proclamation no longer exist.
The reticence of the judiciary when dealing with emergency cases has not only characterized Malaysian Courts. In India, where its Constitution bears many similarities to our own, the 1975-1977 Emergency was questioned in the famous Habeas Corpus case (ADM Jabalpur v Shivkant Shukla ) where the Court upheld the Writ of Habeas Corpus. Unlike its activist stance previously in Sandanandan v State of Kerala (AIR 1966 SC 1925) , here the Courts adopted a rather conservative approach. The question often asked in comparing the two Indian cases was whether this change was a mark of judicial pusillanimity or a helpless Court forced to make do with whatever draconian law was to be interpreted, awaiting legislative reform. In his book on the Indian Supreme Court, Dr Dhavan opines that the Court cannot be accused of cowardice when its jurisdiction was barred by a Statute and a Constitutional amendment to the effect in these matters.
In a similar vein, this argument should be kept in mind when analyzing the twilight of judicial activism in Malaysia.
• The transfer of Executive powers within the sole hands of the Federal Government
Malaysia is a Federation made up of 1 Federal State made up of three components and 13 State Governments . The Constitution clearly lays down lists of matters within the purview of Federal legislation, those by the States and a third lists (concurrent List) that lay down those issues that can be dealt by both .
Art 75 of the Federal Constitution lays down clearly that in case of any overlap or inconsistency between State law and Federal law, the latter prevails. This means that neither the Parliament nor the State Legislature may encroach into the legislative preserve of the other. That would be the position in a non-emergency situation. However, despite this clear cut provision, it seems that this existence of hierarchy is unduly used as a means to confer too much power to the Federal Government.
In The Government of the State of Kelantan v The Government of the Federation of Malaya And Tunku Abdul Rahman Putra Al-Haj , the constitutionality of the Malaysia Act 1963 which created a new Federation comprising Singapore, Sarawak and Sabah was challenged on the ground that the states of the Malayan Federation had not been consulted. Kelantan challenged the decision. Based on the requirement to ‘maintain political stability in this part of Asia and the interests of ten million people, about half a million of them being the inhabitants of the State of Kelantan”, Thomson CJ held that the amendments to the Federal Constitution did not require Kelantan’s consent because there was no implied requirement to that effect. His Lordship was also of the view that the amendments have been effected according to the express terms of art 159 of the Federal Constitution. It was also noted that
“… I cannot see that Parliament went in any way beyond its powers or that it did anything so fundamentally revolutionary as to require the fulfillment of a condition which the Constitution itself does not prescribe, that is to say a condition to the effect that the State of Kelantan or any other State should be consulted.”
• Declaration of Emergencies as an instrument of political exploitation- constitutional impasses
Law and Order have rarely been untainted by the influence of other factors. Thus while renowned jurists, academics but primarily natural lawyers speak of the influence of morality and ethics on law, politics also dominate the legal scenario. The declaration of emergencies has often been the object of exploitation by political leaders to safeguard their own interests sometimes employed in securing their office as Prime Ministers, President and the like.
This political motive was on the agenda in 1975 in India, when a declaration of emergency was pronounced by the government under Indira Gandhi. This measure was adopted exactly two weeks after the Supreme Court’s ruling that Indira Gandhi should be denied voting rights in Parliament (Lok Sabha) due to her involvement in election irregularities. This was followed by grave and violent protests from several influential organizations in the country as well as by leading newspapers. Indira Gandhi, acting alone, took the decision to declare an emergency under Article 352 of the Constitution based on internal disturbance. It was later unraveled that she had failed to seek the approval of the Cabinet members whereby one of them acknowledged: “We were told of the proclamation the next day. What could we do?” This move by the then Prime Minister was the patently to made to secure her position within the government because the ruling of the Court had shed light on her corrupt deeds which of course denied her public confidence .
C. V Das opines that in the Malaysia context, the Sarawak and Kelantan emergencies were specious in that they were once again, motivated by self-interests of political figures. Evidence to support this contention was clear in the case of Stephen Kalong Ningkan v Govt of Malaysia in the argument put forward by Sir Dingle Foot QC in the Privy Council. It was explained that the declaration of a State of Emergency was a political conspiracy to ensure the removal of the Chief Justice who had challenged the legitimacy of the action of the Governor to defrock him. There was other than this relatively minor incident, nothing of consequence warranting the declaration. It would be tantamount to painting an inchoate picture of the whole scenario then, if mention is not made of the outbreaks of public protests following the ruling of the Privy Council in favour of Ningkan.
After the decision, the Malaysian government had the choice between appealing the decision or taking political action to resolve the crisis. Demonstrations which echoed the support of the Federal government were planned in Sarawak which were primarily anti-British and anti-Ningkan in that the public expressed satisfaction with the election of Tawli Sli, a Dayak leader as Chief Minister. It could be said that it was at that very point in time that the situation went overboard and beyond the control of the government – a situation genuinely calling for a proclamation of Emergency. The Privy Council itself noted in Ningkan case that at the time of the declaration there was no evidence of “ the usual signs and symptoms of a grave emergency” – no disturbances, riots or strikes, no extra troops or police had been placed on duty; no curfew or other restrictions on movement had been found necessary; and the hostile activities of Indonesia had already ended.”
The Kelantan declaration in 1977 was defended by the authorities in power on the grounds of a breakdown of Government caused by a constitutional impasse whereby the recalcitrance of the Menteri Besar to resign was compounded by the non-action of the Regent in dissolving the State Assembly- a justification utterly isolate from the essence of “threat to the peace, security and life of a nation” derived from the international and regional instruments . This time, the political ruse was devised to retain the Chief Minister rather than remove him, as previously conspired in Sarawak. The emergency was declared on 8 November 1977, less than a month after the passing of a vote of no confidence motion on the Menteri Besar . Historical records substantiate the political discords between the ruling party and PAS officials as triggering factor of the proclamation of Emergency in Kelantan the following day.
As a mark of constitutional decadence in the country, the wicked ambitions of removing Ningkan and retaining Nasir in the interests of the government, were effectively fulfilled. Exploiting the existence of measures such as declarations of Emergencies when alternative and relatively benign solutions such as dissolution and election could have been adopted, patently casts an egregious imputation on governmental integrity.
• Declaration of emergency in Thailand
Malaysia is not a party to the Civil and Political Covenant 1966. Hence it is not legally bound by its provisions. However due to its commitment to the UDHR, being a signatory party, the provisions of the ICCPR among other UN instruments have the status of customary law in the country.
Article 4(1):
“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”
It would therefore be helpful to analyse the position of a State bound by the rules of the ICCPR during times of Emergency. Thailand would be one. The National Reconciliation Commission was established in March 2005 to devise a peaceful solution to the conflict between the Thai Muslim and the Ruling Government. Three incidents that occurred since the implementation of the emergency decree indicates deepening alienation among Malay Muslim residents. The Executive Decree on Public Administration in Emergency Situations passed on 16 July 2005 was used in Pattani, Yala and Narathiwat provinces on 19 July 2005 and despite the absence of any possible improvement was renewed for three months on 19 October. Provisions in it grant officials immunity from prosecution and suspending administrative court jurisdiction over human rights cases leaves citizens with no redress for abuse. It contains such loopholes that the risk of arbitrary detention and mistreatment of detainees is heightened .
The dangers that the Executive decree has brought about can be summarized as follows:
(drawn from Human Rights Watch letter to the Prime Minister of Thailand)
• the lack of appropriate judicial supervision of arrests and detentions and summons, which heightens the risk of torture or other mistreatment of individuals in custody or while under interrogation;
• the lack of appropriate judicial authorization or supervision of searches and seizures;
• the removal of jurisdiction of the Administrative Court and its procedures for human rights violations committed by state agents;
• limitations on the ability of victims of human rights violations to use civil, criminal, or administrative remedies to gain redress;
the possibility of blanket state censorship, after years of progress in Thailand towards greater media freedom;
• the requirement that suspects not be detained in police stations, detention centers, penal institutions, or prisons, raising the prospect of the use of secret, undisclosed, or inaccessible places of detention where detainees may be mistreated and where monitoring is impossible;
• unnecessary restrictions on the fundamental rights to freedom of expression, assembly, association, and movement; and
• the broad provision allowing the Prime Minister to “issue a notification not to perform any act or to perform an act to the extent that this is necessary for maintaining the security of the state, the safety of the country or the safety of the people.” This apparently can be applied to any person or institution. This is a broad and shocking assertion of governmental power in a free society, more reminiscent of totalitarian regimes than a democracy.
Moreover it has been pointed out that while the decree states that the emergency may last up to three months, it claims no limitations on the number of times it can be extended. This creates a risk of arbitrary and disproportionate limitations on rights and freedoms on an indefinite basis. The United Nations Human Rights Committee in its General Comment No. 29 stated, “measures derogating from the provisions of the Covenant must be of an exceptional and temporary (emphasis ours) nature”. Furthermore the declaration of emergency which was designed primarily for the three provinces under threat can be extended to the entire country which makes it disproportional to the impending threat.
Evidence of past impunity exists to the effect that it is claimed to have fuelled the episodes of insurgency in south Thailand. Some of these incidents are as follows: 2000 extrajudicial killings during the ‘war on drugs’ in 2003, the use of excessive lethal force by the security forces against a group of lightly armed militants in Krue Se Mosque in Pattani province on April 28, 2004 and the brutal dispersal of protesters in Tak Bai in Narathiwat province on October 25,2004
Consider that a decree is different from an act, which does not need parliamentary approval. Although Thaksin has majority vote in his power, why did he choose to pass it as a decree.
S9 of the Emergency Decree has taken away the constitutional right to freedom of assembly . Already the freedom of the press is under great strain as they are not allowed to voice their objection to governmental activities and most media companies are owned by the Prime minister’s family members who enjoy governmental benefits. This provision of Emergency Decree is also not consistent with Article 19 of the ICCPR relating to freedom of expression. The United Nations Human Rights Committee in its General Comment No 10 on Article 19 of the International Covenant on Civil and Political Rights stated that “when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. Paragraph 3 lays down conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be “provided by law”; they may only be imposed for one of the purposes set out in subparagraphs (a) and (b) of paragraph 3; and they must be justified as being “necessary” for that State party for one of those purposes.”
It is thus remarked that parties to the ICCPR are still plagued by the same controversies as non-party States. The fact that the Convention has no ‘bite’ is probably the reason why the State Parties have ignored the repeated appeals by the Human Rights Committee to conform to the relevant provisions on proclamations of emergencies. At most the only advantage that can be discerned is that at times the negative publicity that a country gets in failing to conform to the standards deters it from being in perpetual violation of the Convention.
• Conclusion
The first question that could be asked in paving the way for reform of the Constitution on the issue of Emergencies, is “Why should any laws be abrogated at all in times of emergency?” In his book entitled “ Constitutional Dictatorship”, Clinton Rossiter traces the basis of the principles enshrined in the US Constitution and says: “
“The traditional theory of the Constitution is clearly hostile to the establishment of crisis institutions and procedures. It is constitutional dogma that this document foresees any and every emergency, and that no departure from its solemn injunctions could possibly be necessary. It never seems to have been seriously considered in the Convention of 1787, the Federalist, or the debates in the state ratifying conventions that the men who were to govern in future years would ever have to go outside the words of the Constitution to find the means to meet any crisis. The provisions of the document and the government which they ordained were to be adequate for war as well as peace, for rebellion as well as internal calm…”
According to Rossiter therefore, the US Constitution has been framed with all possibilities in mind including crises situations. He also however points out several provisions which are relevant in times of emergency such as art 1, 8 where Congress has power to declare war and raise and support armies, among others. Art 9 gives the privilege of the writ of habeas corpus to be suspended in cases of rebellion or invasion and Art II clearly transfers power into the hands of the President in emergency situations.
Another argument often put forward in support of the all-encompassing US Constitution is that its existence is the very anti thesis of Emergency situations. This is because it has been framed with the objective that the State will be so perfectly governed that no such situations of emergency will ever arise. This argument is similar to the one used by opponents of the emergence of the Law of War who contend that this goes against the very spirit of the United Nations Charter which clearly prohibits War. Recent history has proven that even the mightiest of States can be turned into a vulnerable creature within a short span of time. There is therefore according to the author of this paper, no doubt that emergencies must at all times be envisaged no matter how high the aspirations of the Constitutional founders may be. Nevertheless it would be important to point out that had the proposed US delegate been present as originally intended in drafting the Malaysian Constitution, the emergency provisions would have not made room for such wide discretionary powers.
An interesting approach of the US when dealing with emergencies, is that despite its wide powers, it has never made complete use of them, unlike the Malaysian experience. Clinton Rossiter says this for example:
“Even before 1939 Mr. Roosevelt in an emergency to be ascertained and declared by himself, could have prohibited transactions in foreign exchange, seized power houses and dams, increased the army and navy beyond their authorized enlisted strength, devaluated the dollar, forbidden all Federal Reserve transactions except under regulations which he approved, seized any plant refusing to give preference to governmental contracts or to manufacture arms for a fair price, requisitioned any American vessel, and exercised complete control over all communications in the United States .”
However impressive the above may sound to us in a raw comparison with what the Malaysian Government has done instead in times of emergency, other considerations must not fail to be evaluated, for fear of painting an inchoate picture. The US is of course a super power where all its actions can have dire consequences on its satellite countries. It cannot therefore take such bold and gigantic steps and utilize the vastness of its powers in times of emergency. Moreover the freedoms and liberties enshrined in its constitution such as the freedom of expression in various forms compounded with the fact that it is the object of constant scrutiny, makes it improbable that it would get away as easily as Malaysia did if it adopted any drastic measures. But this hard fact about the approach of the US constitution can lead us to pose the other question: Were the measures taken in times of emergency in Malaysia necessary to meet the crisis? It is clear as pointed above that the institutionalization of emergencies among others, in Malaysia is a measure in excess of what is required to lull the many periods of unrest.
Bibliography
• Rossiter, C., Constitutional Dictatorship – Crisis Government in the Modern Democracies, 2nd ed (2002) Princeton University: USA
• Richard B. Lillich “The Paris Minimum Standards of Human Rights Norms in a State of Emergency,” American Journal of International law ( 1985), 70 pp 1073-80
• Rajeev Dhavan, Justice on Trial: The Supreme Court today( Wheeler Publishing ) (1980) p. 175
• Mohd Yusof Ariff, “Emergency Powers and the Rule of Law”, (1983) JMCL 87
• C.V Das, Constitutional Supremacy, Emergency Powers and Judicial Attitudes, 1983 JMCL 69
• Sinnadurai, V., Constitutional supremacy, emergency powers and judicial attitudes, JMCL (1983) pp 68-73
• Willian Sumner Gibson, The Laws of the Federated Malay States, London, 1935 9 FMS gazette Vol XXII at p 771
• Emergency Decree violates Thai Constitution and Law- Letter to Thai Prime Minister Thaksin Shinawatra: http://www.hrw.org/english/docs/2005/08/04/thaila11592.htm
• Thailand: Emergency Decree is No Solution – International Crisis Group:http://www.alertnet.org/thenews/fromthefield/218607/113241636413.htm
FACULTY OF LAW
COMPARATIVE CONSTITUTIONAL LAW
Proclamations of Emergencies: A means to Executive Supremacy
“…emergency government once taken root is a tough plan to uproot”-
C K Allen
Humeirah F
LGA050031
Semester 2
21st February 2006
• Introduction
Four emergencies have been declared since the birth of the Federal Constitution of Malaysia in 1957 . Prior to that, an emergency was also declared in 1948 due to Communist terrorism which lasted 12 years. Many constitutional issues remain questionable in the evaluation of emergencies. Some of them are the constitutionality of emergency powers passed by parliament; whether the Yang di-Pertuan Agong may act on his own accord in being subjectively satisfied that there exists a state of emergency; and the question whether the Agong’s delegated power to promulgate Ordinances is valid when Parliament is not in session. Other matters such as the institutionalization of states of emergencies and the prerequisites for such proclamations and the reluctance of courts to decide their validity are equally contentious. All these have paved the way for the Executive to accede to immense powers and compromise the system of checks and balances put in place.
• What is an emergency?
An emergency is a state of affairs that warrants the adoption of special measures whereby the rule of law is displaced and superseded by emergency laws, which are normally provided for in the Constitution of the country. However there are also instances such as when Junta regimes take over or during coup d’etats where emergency powers are evoked beyond the scope of the constitution.
Through the deliberations of the International Law Association in its 61st Paris Conference in 1984, a larger scope in the field of handling public emergencies by national governments was given. There an emergency was defined as “an exceptional situation of crisis or public danger, actual or imminent, which affects the whole population or the whole population of the area to which the declaration applies and constitutes a threat to the organized life of the community of which the state is composed.” Lord MacDermott in Stephen Kalong Ningkan v Govt of Malaysia stated:
“Although an emergency to be within Art 150 of the Constitution must be not only grave but such as to threaten the security or economic life of the Federation or any part of it the natural meaning of the word itself is capable of covering a vary wide range of situations and currencies, including such diverse events as wars, famines, earthquakes, floods, epidemics and the collapse of the civil government.”
The above has been echoed through the acts of other states in the world. For example, on 29 April 1984 April the President of Sudan declared a state of emergency which allowed him to suspend all constitutional right provisions and to grant extraordinary powers to the police and military. This happened after he had sought to rewrite the Sudanese constitution to make himself the supreme political and religious leader but was thwarted by determined opposition. In order to press ahead with his Islamization program while avoiding charges that he was violating the constitution, he declared a state of emergency .
Proclamations of emergencies are sensitive in that they give certain discretion to the Executive organ of the government to deny the public certain freedoms and rights in order to exercise control and restore peace and security. The problem crops up when the Executive exercises too much discretion and impinges on fundamental rights and freedoms, giving rise to a people who behaves and acts very restrictedly gripped with fear of reprisal. This is further exacerbated by the unethical, unlawful and often unconstitutional practice of certain governments to institutionalize these emergencies, when these have been expressly designed to be temporary. What is worse, is when provisions on these emergencies in the Constitution are tampered with through amendments to pave the way for further executive supremacy, giving rise to what Hobbes’ termed a “Leviathan Republic” or what is known as a “Banana Republic” in common parlance.
In Bhagat Singh & Ors v King Emperor , Lord Dunedin in the Privy Council admitted that “ a state of emergency is something that does not permit of any exact definition: it connotes a state of matters calling for drastic action…”
In Malaysia, as it will be understood through this paper, emergencies constitute the favourite toys of the Executive with which they have secured their authority through the tides of times… and constitutional amendments. In this context reference may also be made to Government of Malaysia v Mahan Singh where Lee Hun Hoe CJ merged the common law doctrine of necessity with emergency powers under Art 150. In his Lordship’s opinion art 150 gave wide powers to the Yang di pertouan Agong “so wide that he would in the interest of the nation…act as he thought fit.”
• Constitutional Supremacy: A humbug
The Westminister model can either be based on parliamentary sovereignty as in UK or Constitutional supremacy, as in Malaysia. This is clearly laid down by art 4 of the Constitution . As a matter of fact it was observed by Raja Azlan Shah F.J in Loh Kooi Chon v Government of Malaysia
“The Constitution is not a mere collection of pious platitudes. It is the supreme law of the land embodying 3 basic concepts: One of them is that the individual has certain fundamental rights upon which not even the power of the State may encroach. The second is the distribution of sovereign power between the States and the Federation, that the 13 states shall exercise complete sovereign power in local matters and the nation in matters affecting the country at large. The third is that no single man or body shall exercise complete sovereign power, but that it shall be distributed among the Executive, Legislative and Judicial Branches of government, compendiously expressed in modern terms that we are a government of laws, not of men.”
Written law can thus be invalidated by the Constitution under three instances: firstly in the case of Federal and state written law where Parliament in the former case and State Legislature in the latter case have no power to make law; secondly Federal and State written law may be invalid where it violates any provision of the Constitution and thirdly in the case of State written law, where it is inconsistent with Federal law .
The authority of the Constitution is however diluted by two features which enable constitutionally inconsistent provisions to be enacted. The first is the amending power conferred on Parliament under s 159 of the Constitution. It is to be noted that this power in enhanced by the composition of the Parliament in favour of the ruling party. However the discussion of this matter is beyond the scope of this paper . Secondly powers under s 150 which are conferred on the Executive to declare emergencies.
Whilst it is established by English courts that Parliamentary Supremacy entails the adherence to the principle that it is not for them to question laws passed by Parliament , it seems that this approach is willfully ignored in the context of Malaysian Constitutional Supremacy. Indirectly the principles enshrined in the Constitution have been questioned and re questioned through the amendments made by Parliament. Some authors inevitably question whether the Malaysian model follows the doctrine of Parliamentary Supremacy rather than Constitutional Supremacy.
In Malaysia, the overlapping powers of the legislature and the executive under the Cabinet system imply that at the end of the day, after all due deduction, power of amending laws remains in the hands of the Executive.
• Evolution of Emergencies in Malaysia
In 1888, the first Public Order instrument was made by way of an Order in Council in the Malay States . This was enacted to empower the British Authorities to surmount problems related to security and public order arising mainly from the activities of secret societies of the Gee Hin and the Hai San and the local rivalries in the tin mines, rubber estates and shanty towns of the states of Perak, Selangor, Negeri Sembilan and Pahang.
The first formal emergency legislation was introduced as The Emergency Enactment 1914. It was tailored to suit the situation of emergency that arose during the First World War. The power of arrest and detention without trial , the curtailment and rationing of foodstuffs and the control of printed matter and publications were all included.
In 1930 the British authorities enacted the Public Emergency Act which gave wide discretionary powers to the High Commissioner in making regulations in respect of emergencies of public danger. By 1941 all the states in the Malay Peninsula had already enacted uniform legislation pertaining to emergency or public danger. However they were operational only on a month to month basis as the local situation required. It is interesting to note that under s. 3(1) of the Emergency Enactment 1930 it is stated that emergencies can be proclaimed… “provided that no such regulation shall alter any existing procedure in criminal cases or confer any right to punish by fine or imprisonment without trial.”
The communist terrorists then became a threat to security in the late 1940’s. The insurrection of the Malayan Communist Part (MCP) in 1948 warranted a new set of executive powers and this is how the Emergency Ordinance 1948 came into being. The date of expiration of the proclamation was meant to be after 60 days from the date on which it was issued. Unlike the previous emergency enactments which preserved the Criminal Procedure Code, the 1948 Ordinance allowed the High Commissioner to make regulations which had the effect of altering the normal procedure of criminal cases. A wide power was thus given to the High Commissioner to make laws pertaining to the maintenance of “public order and preservation of life of the community, as well as the ability to make arbitrary arrest and detention . The power to make regulations relating to the conduct of criminal trials was exercised to enforce the Emergency (Criminal Trials) Regulations, 1948 which gave way to the Emergency (Criminal Trials) Regulations 1964 ( ECTR 1964) and the Essential (Special Cases) Regulations 1975 (ESCAR 1975)
The end of the Emergency in 1960 was marked by the advent of the Internal Security Act 1960 to substitute the powers exercisable by the Emergency Regulations 1948, which was made under s 149 of the Constitution. The justification of this rather overbearing enactment was the continued presence and threat of communist terrorists. The numerical strength of the terrorists had declined however by June 1960 to about 583, all in the northern part of the Peninsula. This certainly casts doubt on the need for the ISA in the first place.
Indonesia’s opposition regarding the formation of Malaysia led to the first proclamation of emergency after Merdeka in 1964.The Malaysian Parliament then enacted the Emergency (Essential Powers) Act 1964. This Act transferred powers into the hands of the Agong to make laws during emergencies. Pursuant to s 2 of the EEPA the Agong promulgated the ECTR 1964, a criminal procedure code which is devoid of various elements of ‘fair trial” . Moreover regulation 3 of the ECTR provides that the Regulations “shall have effect notwithstanding anything to the contrary contained in any written law.”
The third state of emergency was declared in 1969 following the racial riots. The Emergency (Essential Powers) Ordinance 1969 was promulgated under art 152(2). Art 150(4) which extends the application of an emergency law to any matter within the legislative authority of a State was used by the Prime Minister to all states that the Legislative Assembly was not to be summoned to meet until such a date as was to be determined by the Agong.
It is often stated that the New Economic Policy, piling important privileges onto Malays, could not have been furthered without the backing of emergency rule which was used to quell any disapprobation by adversaries.
The authority of the EEPO 1969 was such that the Agong had wide powers to make laws on any issue pertaining to the maintenance of peace and security and the life of the community. It enabled him to delegate power to any authority to make laws and by-laws. Section 4 gave the overarching power to regulations to have effect notwithstanding anything inconsistent with the provisions of the Constitution or any other written law. In 1975, the Agong promulgated the Essential (Special Cases) Regulations 1975 which followed closely the provisions of the former ECTR 1964. The continued existence of this instrument is questionable.
On 17 May 1969 the Emergency (Essential Powers) Ordinance No 2 1969 was promulgated. A director of Operations was appointed and made responsible for exercising the executive authority of the Federation. He had to comply with the PM’s advice and be assisted by a National Operations Council consisting of persons appointed by himself.
Federal executive authority was furthered in Kelantan through the Emergency Powers (Kelantan) Act 1977 during the emergency then. Legislative authority of the State in matters which were supposedly within the legislative authority of that state were conferred upon the state ruler, to the exclusion of the Legislative Assembly. Tun Suffian, former Lord President of Malaysia explained that the act transferred all executive and legislative powers in the hands of the PM, indirectly through the Director of Government.
It can therefore be remarked that the proclamation of emergencies undertaken by the Agong as pointed out above has been primarily the furthered by the intention of the Executive since the Agong’s role in Malaysia can be compared to that of the Queen of England : “ A mere figure head standing in the tower of London to be gazed at by sight-seers ”.
• The most amended provision of the Constitution: Art 150 – A mark of the Executive’s authority over the Constitution
The original intention of the Reid Commission in drafting the Constitution was to confer very limited and transitory powers on the executive to make emergency laws. These were provided under Part XI of the Reid Draft . The commission used such words as “the Federation must have adequate power in the last resort to protect…essential national interests. But in our opinion infringement of fundamental rights or of state rights is only justified to such an extent as may be necessary to meet any particular danger which threatens the nation.” (words originally not italicized) It is interesting to note that the restriction in the first part of the sentence, as has been italicized is further qualified by the second set of italicized words which makes it clear that the use of emergency laws as highlighted above were clearly not within the purview of the Reid Commission’s intention.
A summary of the provisions of the Reid Commission and Art 150 subsequently enacted will be made below:
Reid Commission Merdeka Constitution Comment
1. Art 138(1):procalamation of emergency after Govt satisfied and Yang di-Pertouan Agong issues. Art 150(1): The Yang di-Pertouan Agong must be satisfied of the existence of an emergency and proclaim it. Does not make much of a difference because the Agong at any rate functions according to the advice of the Cabinet: Art 40
2. Art 138(3) the emergency proclamation was to end after two months unless before expiration it has been approved by resolutions in both Houses of Parliament. Imported exactly into the Constitution except that a difference made between an ordinance and a proclamation. The latter was to have a lifespan of two months whereas the former a life span of 15 days. This showed the more cautious approach of the Merdeka Constitution compared to the Reid Commission’s enactments.
3. Clause 4(a) of Art 138 provided that executive authority of the Federation extended to matters within the legislative authority of Parliament to legislative authority of state. Parliament was authorized to limit duration of a State Legislature, the suspension of an election. The king was also given power when the Parliament was not sitting to promulgate ordinances having the force of law.
4. Clause (5) stipulated that an emergency will be validated despite repugnant to fundamental liberties.
5. Clause (6) provided that any law made by Parliament in emergency was cease to operate after 6 months. All these provisions were incorporated into the Merdeka Constitution
The six amendments to Art 150:
1. 1960: the time limit of 2 months and 15 days were deleted from clause (3). This was replaced by a provision that the matter should be laid before Parliament and continued to be in force if not sooner revoked by the Agong.
2. 1963: the words “whether by way or external aggression or internal disturbance after the words “is threatened” under clause (1) in the MErdeka Constitution were deleted. It also expanded powers of Parliament to make laws if an emergency requires it. However these powers did not extend to Muslim law, Custom, native law or custom in a Borneo state, religion, citizenship or language.
3. 1966: Parliament was enabled by virtue of the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 to amend the Constitution of Sarawak in any matter if an emergency called for it. This gave the central Parliament power which clearly violated art 41 of the State Constitution which required an Ordinance by the legislature of Sarawak before an amendment was made to its constitution.
4. 1976: these were not so significant: The term “muslim” was substituted with “islamic” whenever the term appeared in the constitution.
5. 1981:These greatly enlarged the powers exercisable by the executive in times of emergency and deviated completely from the original intent of the legislators of the Merdeka Constitution. This included the term a threat to “public order”, different from “Public danger” in ERO 1948
6. It now reads : “ If the Yang di-Pertouan Agong proclaims a state of emergency under art 150 he must be satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect. Under clause (2) the emergency must not be actual but can be imminent. This enables the executive to declare an emergency at any time and in any part of the country without having to satisfy the conditions set out under clause (1). It also clearly allows for multiple Proclamations. Clause (3) provides that any proclamation and any ordinance promulgated under Clause 2B shall be laid before both Houses. This gives the impression that check and balances exist by virtue of Parliament’s role. Reality is such that since the executive predominates the Parliament, it amounts to ‘supervision of the executive by the executive” .
• Institutionalization of states of emergency: the continuation of Executive domination
The declaration of Emergencies results in two parallel legal regimes subsisting at one time; one the parliamentary system with a Cabinet which is answerable to an elected Parliament, and the other the emergency regime where the Government may at its option invoke its emergency powers and undertake action without any prior consultation or acquiescence of the Parliament. Since Emergency powers cannot be invalidated as being unconstitutional pointed above, this gives overriding, overbearing and excessive powers to the executive thus leading to the collapse of the whole system of separation of powers which relies heavily on a set of checks and balances.
In 1979, a decade after the proclamation of Emergency on 15 May 1969, the Law Minister, Dato Hamzah Abu Samah declared:
“Some people may claim that everything is peaceful and normal- that there does not appear to be a state of emergency; that there is no more need for the existence of the Proclamation of Emergency or the proclamation of the security area. That this appears to be so is not owing to the non-existence of the state of emergency but to the efforts of the government and the security forces in keeping the state of emergency under control. Let it be known there are still hidden dangers lurking around and within our midst simmering under the surface… The Proclamation of Emergency in 1969 has had to continue and will have to continue because it cannot be gainsaid that there existed and still does exist a grave emergency whereby the security and economic life of the country has been and continues to be threatened.”
The continued state of emergency has never been a matter of concern on the political agenda even after the recent general elections in 2003. The state of emergency therefore remains a debate for the academic lawyers, constitutionalists and soothsayers who may wish to enlighten us on what this augurs for us, Malaysians.
Relentless efforts and repeated attempts have been made by courts to rule upon the existence/inexistence of the state of emergency. This was curtailed in January 1979 by the Emergency ( Essential Powers) Act, 1979 which precludes the court, inter alia, from questioning the continued operation of any Proclamation issued by the Yang di-Pertouan Agong under an Act of Parliament . A final and definite ouster was added by the Constitution ( Amendment) Act A514 of 1981 which, inter alia, purported to oust the emergency and/or the continuance of a state of emergency . Art 150 therefore has undergone 6 important amendments that have blurred the once discernible borders of emergency proclamations.
But the twilight of constitutionalism in Malaysia has been further achieved by limiting the Parliamentary intervention in reviewing the Proclamation of emergencies. The original provision that the proclamation should lapse automatically after two months unless approved by a resolution passed by both Houses was replaced by the current provision which imposes a positive duty on the House to revoke the proclamation by a resolution. It has thus paved the way for facilitating the institutionalization of emergencies…To ensure that no stone has been left unturned, the constitutional amendment of 1981, mentioned above, deleted the former Clause 2 requiring the Yang di Pertouan Agong “to summon Parliament as soon as may be practicable” for the purpose of revoking the proclamation.
The current state of affairs is that by the new Clause 6, six subjects only are beyond the realm of emergency laws, namely (i) Islamic law, (ii) the custom of Malays, (iii) native law and custom in Sabah and Sarawak, (iv) religion, (v) citizenship, and (vi) language. One could scoff at this factual observation which is instrumental in revealing the importance accorded by the Malaysian government to its priorities.
The legislative role of the parliament and the enforcement of laws by the judiciary is undermined due to the continued state of emergency in Malaysia and the vast powers conferred by art 150. The very purpose of sanctifying the constitution is defeated and reliance on its provisions would shake the faith of any citizen in the authority of the Constitution.
In Thomas Jefferson’s wise words:
“In questions of power, let no more be said of confidence in man, but bind him down from mischief by the chains of Constitution.”
Now that the “chains of Constitution” are loosely held, and the Executive is nonchalantly escaping all attempts of control and discipline, Mischief is obviously on the run and there is and will be no stopping it unless Responsible Governance steps in.
• The policy of non-interference of the judiciary: Executive absolutism or Judicial Cowardice?
Malaysia until now experiences many instances of direct transplanting and supplanting of laws from western countries into its rather complex legal system. This copy-cat practice has not been spared from criticism. While these models, whether in the form of political philosophies or statutory enactments have been inserted into the current political and legal systems, they have failed to be tailored accordingly. We therefore find even Montesquieu’s concept of the Separation of powers transposed directly into Malaysian Constitutional law, failing radically. The system of checks and balances does not operate effectively. One succinct example would be how the judiciary withdraws in any matter questioning the validity of proclamations of emergencies..
Lord Parker in The Zamora stated: “Those responsible for national security must be the sole judges of national security. It would be obviously undesirable that such matter should be made the subject of evidence in a court of law or otherwise discussed in public .” Sixty years later, Lord Denning defended this approach in R v Secretary of State ex parte Hosenball :
“There is a conflict between the interests of national security on the one hand and the freedom of the individual on the other. The balance between these two is not for a court of law .”
The tactful approach of Lord Denning can be discerned in the above whereby he points out the inherent conflict between the two which is an evil in itself, but leaving it to the executive to deal with the formidable task of choosing the lesser of the two evils.
Eng Keock Cheng v Public Prosecutor is an interesting case whereby the legality of declaring emergencies under the Constitution was probed. The appellant here was convicted for illegal possession of fire arms under s 57(1) of ISA and sentenced to death. The power to enact emergency regulations, punishable under the ISA as in this case, were argued to be wrongly devolved to the Yang di-Pertouan Agong as this was inconsistent with the Constitution.
Wylie CJ held that the true effect of art 150 of the Constitution was that Parliament had during an emergency, the power to legislate on any subject and to any effect even if inconsistent with the Constitution and this also extended to fundamental liberties. He also stated that this power comprised the ability to delegate part of the power to legislate to the Yang di Pertouan Agong or any other authority despite the existence of a written constitution. Similarly in Sidin v Public Prosecutor the same challenge to the Emergency (Criminal Trials) Regulations 1964 was brought up because it empowered the Agong’s delegate (the public prosecutor) to determine by an arbitrary act which persons should be tried under the ECTR 1964.
However a bold move by the Privy Council can be considered in Teh Cheng Pong v Public Prosecutor where the appellant had been charged under the ISA 1960 for possessing arms in a security area and tried under special procedures laid down by the Essential (Security Cases) Regulations 1975 and he was found guilty and sentenced to death. He challenged the validity of the security area proclamation made by the Yang di-PErtuan Agong under the ISA 1960. Lord Diplock set aside the conviction and sentence of the appellant and remitted the case to the Federal Court for further considerations as to whether or not to order a new trial. Lord Diplock held that once Parliament had sat, the executive power to make regulations under emergency ordinances, as well as power to enact ordinances lapsed so that all regulations made under the Emergency Proclamations since February 1971, when Parliament was summoned, was invalidated.
Subsequently the Government’s legal advisers acted promptly and Parliament passed the Emergency (Essential Powers) Act 1979 which came into effect on 20 February 1971, in order to validate the regulations and all actions taken under them. And by way of the Constitution (Amendment) Act 1981, cl 8 to art 150 of the Federal Constitution was introduced in a noble attempt to whittle down the impact of Teh Cheng Poh. Clause (b) to art 150 was introduced to prevent intrusion of judicial review.
Hence it can be concluded that art 150(8) of the Federal Constitution prevents the courts from adjudicating the validity of an emergency proclamation or ordinance. It also prevents the court from questioning the continued validity of a proclamation or ordinance. The courts too cannot make any ruling that an emergency has come to an end nor can the courts hold that the reasons for the proclamation no longer exist.
The reticence of the judiciary when dealing with emergency cases has not only characterized Malaysian Courts. In India, where its Constitution bears many similarities to our own, the 1975-1977 Emergency was questioned in the famous Habeas Corpus case (ADM Jabalpur v Shivkant Shukla ) where the Court upheld the Writ of Habeas Corpus. Unlike its activist stance previously in Sandanandan v State of Kerala (AIR 1966 SC 1925) , here the Courts adopted a rather conservative approach. The question often asked in comparing the two Indian cases was whether this change was a mark of judicial pusillanimity or a helpless Court forced to make do with whatever draconian law was to be interpreted, awaiting legislative reform. In his book on the Indian Supreme Court, Dr Dhavan opines that the Court cannot be accused of cowardice when its jurisdiction was barred by a Statute and a Constitutional amendment to the effect in these matters.
In a similar vein, this argument should be kept in mind when analyzing the twilight of judicial activism in Malaysia.
• The transfer of Executive powers within the sole hands of the Federal Government
Malaysia is a Federation made up of 1 Federal State made up of three components and 13 State Governments . The Constitution clearly lays down lists of matters within the purview of Federal legislation, those by the States and a third lists (concurrent List) that lay down those issues that can be dealt by both .
Art 75 of the Federal Constitution lays down clearly that in case of any overlap or inconsistency between State law and Federal law, the latter prevails. This means that neither the Parliament nor the State Legislature may encroach into the legislative preserve of the other. That would be the position in a non-emergency situation. However, despite this clear cut provision, it seems that this existence of hierarchy is unduly used as a means to confer too much power to the Federal Government.
In The Government of the State of Kelantan v The Government of the Federation of Malaya And Tunku Abdul Rahman Putra Al-Haj , the constitutionality of the Malaysia Act 1963 which created a new Federation comprising Singapore, Sarawak and Sabah was challenged on the ground that the states of the Malayan Federation had not been consulted. Kelantan challenged the decision. Based on the requirement to ‘maintain political stability in this part of Asia and the interests of ten million people, about half a million of them being the inhabitants of the State of Kelantan”, Thomson CJ held that the amendments to the Federal Constitution did not require Kelantan’s consent because there was no implied requirement to that effect. His Lordship was also of the view that the amendments have been effected according to the express terms of art 159 of the Federal Constitution. It was also noted that
“… I cannot see that Parliament went in any way beyond its powers or that it did anything so fundamentally revolutionary as to require the fulfillment of a condition which the Constitution itself does not prescribe, that is to say a condition to the effect that the State of Kelantan or any other State should be consulted.”
• Declaration of Emergencies as an instrument of political exploitation- constitutional impasses
Law and Order have rarely been untainted by the influence of other factors. Thus while renowned jurists, academics but primarily natural lawyers speak of the influence of morality and ethics on law, politics also dominate the legal scenario. The declaration of emergencies has often been the object of exploitation by political leaders to safeguard their own interests sometimes employed in securing their office as Prime Ministers, President and the like.
This political motive was on the agenda in 1975 in India, when a declaration of emergency was pronounced by the government under Indira Gandhi. This measure was adopted exactly two weeks after the Supreme Court’s ruling that Indira Gandhi should be denied voting rights in Parliament (Lok Sabha) due to her involvement in election irregularities. This was followed by grave and violent protests from several influential organizations in the country as well as by leading newspapers. Indira Gandhi, acting alone, took the decision to declare an emergency under Article 352 of the Constitution based on internal disturbance. It was later unraveled that she had failed to seek the approval of the Cabinet members whereby one of them acknowledged: “We were told of the proclamation the next day. What could we do?” This move by the then Prime Minister was the patently to made to secure her position within the government because the ruling of the Court had shed light on her corrupt deeds which of course denied her public confidence .
C. V Das opines that in the Malaysia context, the Sarawak and Kelantan emergencies were specious in that they were once again, motivated by self-interests of political figures. Evidence to support this contention was clear in the case of Stephen Kalong Ningkan v Govt of Malaysia in the argument put forward by Sir Dingle Foot QC in the Privy Council. It was explained that the declaration of a State of Emergency was a political conspiracy to ensure the removal of the Chief Justice who had challenged the legitimacy of the action of the Governor to defrock him. There was other than this relatively minor incident, nothing of consequence warranting the declaration. It would be tantamount to painting an inchoate picture of the whole scenario then, if mention is not made of the outbreaks of public protests following the ruling of the Privy Council in favour of Ningkan.
After the decision, the Malaysian government had the choice between appealing the decision or taking political action to resolve the crisis. Demonstrations which echoed the support of the Federal government were planned in Sarawak which were primarily anti-British and anti-Ningkan in that the public expressed satisfaction with the election of Tawli Sli, a Dayak leader as Chief Minister. It could be said that it was at that very point in time that the situation went overboard and beyond the control of the government – a situation genuinely calling for a proclamation of Emergency. The Privy Council itself noted in Ningkan case that at the time of the declaration there was no evidence of “ the usual signs and symptoms of a grave emergency” – no disturbances, riots or strikes, no extra troops or police had been placed on duty; no curfew or other restrictions on movement had been found necessary; and the hostile activities of Indonesia had already ended.”
The Kelantan declaration in 1977 was defended by the authorities in power on the grounds of a breakdown of Government caused by a constitutional impasse whereby the recalcitrance of the Menteri Besar to resign was compounded by the non-action of the Regent in dissolving the State Assembly- a justification utterly isolate from the essence of “threat to the peace, security and life of a nation” derived from the international and regional instruments . This time, the political ruse was devised to retain the Chief Minister rather than remove him, as previously conspired in Sarawak. The emergency was declared on 8 November 1977, less than a month after the passing of a vote of no confidence motion on the Menteri Besar . Historical records substantiate the political discords between the ruling party and PAS officials as triggering factor of the proclamation of Emergency in Kelantan the following day.
As a mark of constitutional decadence in the country, the wicked ambitions of removing Ningkan and retaining Nasir in the interests of the government, were effectively fulfilled. Exploiting the existence of measures such as declarations of Emergencies when alternative and relatively benign solutions such as dissolution and election could have been adopted, patently casts an egregious imputation on governmental integrity.
• Declaration of emergency in Thailand
Malaysia is not a party to the Civil and Political Covenant 1966. Hence it is not legally bound by its provisions. However due to its commitment to the UDHR, being a signatory party, the provisions of the ICCPR among other UN instruments have the status of customary law in the country.
Article 4(1):
“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”
It would therefore be helpful to analyse the position of a State bound by the rules of the ICCPR during times of Emergency. Thailand would be one. The National Reconciliation Commission was established in March 2005 to devise a peaceful solution to the conflict between the Thai Muslim and the Ruling Government. Three incidents that occurred since the implementation of the emergency decree indicates deepening alienation among Malay Muslim residents. The Executive Decree on Public Administration in Emergency Situations passed on 16 July 2005 was used in Pattani, Yala and Narathiwat provinces on 19 July 2005 and despite the absence of any possible improvement was renewed for three months on 19 October. Provisions in it grant officials immunity from prosecution and suspending administrative court jurisdiction over human rights cases leaves citizens with no redress for abuse. It contains such loopholes that the risk of arbitrary detention and mistreatment of detainees is heightened .
The dangers that the Executive decree has brought about can be summarized as follows:
(drawn from Human Rights Watch letter to the Prime Minister of Thailand)
• the lack of appropriate judicial supervision of arrests and detentions and summons, which heightens the risk of torture or other mistreatment of individuals in custody or while under interrogation;
• the lack of appropriate judicial authorization or supervision of searches and seizures;
• the removal of jurisdiction of the Administrative Court and its procedures for human rights violations committed by state agents;
• limitations on the ability of victims of human rights violations to use civil, criminal, or administrative remedies to gain redress;
the possibility of blanket state censorship, after years of progress in Thailand towards greater media freedom;
• the requirement that suspects not be detained in police stations, detention centers, penal institutions, or prisons, raising the prospect of the use of secret, undisclosed, or inaccessible places of detention where detainees may be mistreated and where monitoring is impossible;
• unnecessary restrictions on the fundamental rights to freedom of expression, assembly, association, and movement; and
• the broad provision allowing the Prime Minister to “issue a notification not to perform any act or to perform an act to the extent that this is necessary for maintaining the security of the state, the safety of the country or the safety of the people.” This apparently can be applied to any person or institution. This is a broad and shocking assertion of governmental power in a free society, more reminiscent of totalitarian regimes than a democracy.
Moreover it has been pointed out that while the decree states that the emergency may last up to three months, it claims no limitations on the number of times it can be extended. This creates a risk of arbitrary and disproportionate limitations on rights and freedoms on an indefinite basis. The United Nations Human Rights Committee in its General Comment No. 29 stated, “measures derogating from the provisions of the Covenant must be of an exceptional and temporary (emphasis ours) nature”. Furthermore the declaration of emergency which was designed primarily for the three provinces under threat can be extended to the entire country which makes it disproportional to the impending threat.
Evidence of past impunity exists to the effect that it is claimed to have fuelled the episodes of insurgency in south Thailand. Some of these incidents are as follows: 2000 extrajudicial killings during the ‘war on drugs’ in 2003, the use of excessive lethal force by the security forces against a group of lightly armed militants in Krue Se Mosque in Pattani province on April 28, 2004 and the brutal dispersal of protesters in Tak Bai in Narathiwat province on October 25,2004
Consider that a decree is different from an act, which does not need parliamentary approval. Although Thaksin has majority vote in his power, why did he choose to pass it as a decree.
S9 of the Emergency Decree has taken away the constitutional right to freedom of assembly . Already the freedom of the press is under great strain as they are not allowed to voice their objection to governmental activities and most media companies are owned by the Prime minister’s family members who enjoy governmental benefits. This provision of Emergency Decree is also not consistent with Article 19 of the ICCPR relating to freedom of expression. The United Nations Human Rights Committee in its General Comment No 10 on Article 19 of the International Covenant on Civil and Political Rights stated that “when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. Paragraph 3 lays down conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be “provided by law”; they may only be imposed for one of the purposes set out in subparagraphs (a) and (b) of paragraph 3; and they must be justified as being “necessary” for that State party for one of those purposes.”
It is thus remarked that parties to the ICCPR are still plagued by the same controversies as non-party States. The fact that the Convention has no ‘bite’ is probably the reason why the State Parties have ignored the repeated appeals by the Human Rights Committee to conform to the relevant provisions on proclamations of emergencies. At most the only advantage that can be discerned is that at times the negative publicity that a country gets in failing to conform to the standards deters it from being in perpetual violation of the Convention.
• Conclusion
The first question that could be asked in paving the way for reform of the Constitution on the issue of Emergencies, is “Why should any laws be abrogated at all in times of emergency?” In his book entitled “ Constitutional Dictatorship”, Clinton Rossiter traces the basis of the principles enshrined in the US Constitution and says: “
“The traditional theory of the Constitution is clearly hostile to the establishment of crisis institutions and procedures. It is constitutional dogma that this document foresees any and every emergency, and that no departure from its solemn injunctions could possibly be necessary. It never seems to have been seriously considered in the Convention of 1787, the Federalist, or the debates in the state ratifying conventions that the men who were to govern in future years would ever have to go outside the words of the Constitution to find the means to meet any crisis. The provisions of the document and the government which they ordained were to be adequate for war as well as peace, for rebellion as well as internal calm…”
According to Rossiter therefore, the US Constitution has been framed with all possibilities in mind including crises situations. He also however points out several provisions which are relevant in times of emergency such as art 1, 8 where Congress has power to declare war and raise and support armies, among others. Art 9 gives the privilege of the writ of habeas corpus to be suspended in cases of rebellion or invasion and Art II clearly transfers power into the hands of the President in emergency situations.
Another argument often put forward in support of the all-encompassing US Constitution is that its existence is the very anti thesis of Emergency situations. This is because it has been framed with the objective that the State will be so perfectly governed that no such situations of emergency will ever arise. This argument is similar to the one used by opponents of the emergence of the Law of War who contend that this goes against the very spirit of the United Nations Charter which clearly prohibits War. Recent history has proven that even the mightiest of States can be turned into a vulnerable creature within a short span of time. There is therefore according to the author of this paper, no doubt that emergencies must at all times be envisaged no matter how high the aspirations of the Constitutional founders may be. Nevertheless it would be important to point out that had the proposed US delegate been present as originally intended in drafting the Malaysian Constitution, the emergency provisions would have not made room for such wide discretionary powers.
An interesting approach of the US when dealing with emergencies, is that despite its wide powers, it has never made complete use of them, unlike the Malaysian experience. Clinton Rossiter says this for example:
“Even before 1939 Mr. Roosevelt in an emergency to be ascertained and declared by himself, could have prohibited transactions in foreign exchange, seized power houses and dams, increased the army and navy beyond their authorized enlisted strength, devaluated the dollar, forbidden all Federal Reserve transactions except under regulations which he approved, seized any plant refusing to give preference to governmental contracts or to manufacture arms for a fair price, requisitioned any American vessel, and exercised complete control over all communications in the United States .”
However impressive the above may sound to us in a raw comparison with what the Malaysian Government has done instead in times of emergency, other considerations must not fail to be evaluated, for fear of painting an inchoate picture. The US is of course a super power where all its actions can have dire consequences on its satellite countries. It cannot therefore take such bold and gigantic steps and utilize the vastness of its powers in times of emergency. Moreover the freedoms and liberties enshrined in its constitution such as the freedom of expression in various forms compounded with the fact that it is the object of constant scrutiny, makes it improbable that it would get away as easily as Malaysia did if it adopted any drastic measures. But this hard fact about the approach of the US constitution can lead us to pose the other question: Were the measures taken in times of emergency in Malaysia necessary to meet the crisis? It is clear as pointed above that the institutionalization of emergencies among others, in Malaysia is a measure in excess of what is required to lull the many periods of unrest.
Bibliography
• Rossiter, C., Constitutional Dictatorship – Crisis Government in the Modern Democracies, 2nd ed (2002) Princeton University: USA
• Richard B. Lillich “The Paris Minimum Standards of Human Rights Norms in a State of Emergency,” American Journal of International law ( 1985), 70 pp 1073-80
• Rajeev Dhavan, Justice on Trial: The Supreme Court today( Wheeler Publishing ) (1980) p. 175
• Mohd Yusof Ariff, “Emergency Powers and the Rule of Law”, (1983) JMCL 87
• C.V Das, Constitutional Supremacy, Emergency Powers and Judicial Attitudes, 1983 JMCL 69
• Sinnadurai, V., Constitutional supremacy, emergency powers and judicial attitudes, JMCL (1983) pp 68-73
• Willian Sumner Gibson, The Laws of the Federated Malay States, London, 1935 9 FMS gazette Vol XXII at p 771
• Emergency Decree violates Thai Constitution and Law- Letter to Thai Prime Minister Thaksin Shinawatra: http://www.hrw.org/english/docs/2005/08/04/thaila11592.htm
• Thailand: Emergency Decree is No Solution – International Crisis Group:http://www.alertnet.org/thenews/fromthefield/218607/113241636413.htm
posted by Sabah Carrim at 8:54 AM
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