• UM Law Society

DARURAT DECLARED AMIDST MCO RE-IMPLEMENTATION

On Monday, Prime Minister Tan Sri Muhyiddin Yassin announced the re-implementation of the Movement Control Order (MCO) in red zone areas, namely the Federal Territories of Kuala Lumpur, Putrajaya and Labuan, and the states of Melaka, Johor, Penang, Selangor and Sabah. A conditional MCO was implemented for the states of Pahang, Perak, Negeri Sembilan, Kedah, Terengganu and Kelantan, and a recovery MCO for Perlis and Sarawak. All MCOs will be enforced for 14 days, effective 13th January to the 26th January.


The next day, the Yang Di-Pertuan Agong (YDPA), upon advice from the Prime Minister, declares a nationwide state of emergency lasting until 1st August, or earlier, should the pandemic stabilize. The decree is said to take into account the safety of the people and the country’s interest in slowing the spread of COVID-19. The Prime Minister has also announced that an independent task force consisting of government and opposition MPs as well as health experts will be formed under an ordinance to decide and advise the King on whether the emergency proclamation may end at an earlier date. Tan Sri Muhyiddin has also assured the public that the government will continue to function as usual as all administration machinery will be unaffected. No military rules nor curfews will be imposed as well. Additionally, to maintain economic resilience, all economic activities will go on subject to standard operating procedures, while Bursa Malaysia and the Securities Commission will continue to facilitate the market. Undeniably, the state of emergency declared this time is seemingly distinct from its few historical precedents.


The legal framework surrounding the declaration stems from Article 150(1) of the Federal Constitution (‘the Constitution’). It states that a national emergency may be declared if the YDPA is satisfied that the security, economic life, or public order of the Federation is threatened. Constitutional expert and Perak opposition leader Abdul Aziz Bari said that the declaration cannot be questioned in court. Article 150(4) highlights that the declaration thrusts concentration of power to the executive, extending its powers to that usually held by the legislature. A state of emergency also allows for the YDPA to promulgate ordinances, and for Parliament to pass new laws, bypassing the usual Constitutional safeguards that come in the form of certain legal procedures, larger voting majorities, and the consent of the Council of Malay Rulers amongst others. The only exceptions to the laws enacted during this period are matters relating to Islamic Law, Malay Customs or the laws and customs under Sabah and Sarawak and those relating to citizenship, language and religion, as stated in Article 150(6A) of the Constitution. The laws promulgated during this state shall also be valid for a period of 6 months after the emergency has been revoked.


Worryingly, this indicates a suspension of the Constitution whereby even fundamental liberties may be diminished by force of valid law should they be enacted. As Article 150(6) states that no laws made during an emergency shall be invalid on grounds that they contravene the Constitution. In Phang Chin Hock v Public Prosecutor, the court held that the rule of harmonious construction in construing Articles 4 and 159 enable them to hold that Acts of Parliament made in accordance with the conditions set out in Article 159 are valid even if inconsistent with the Constitution. Thus, Article 4(1) of the Constitution, which provides for the supremacy of the Constitution can be overridden. In Eng Keock Cheng v Public Prosecutor, the court also affirmed that fundamental rights can be violated during emergency. However, former Federal Court Judge Gopal Sri Ram has opined that the fundamental liberties enshrined in our Constitution will not come under threat as they form a portion of the basic structure of the supreme law of the Federation.


Though a Proclamation of Emergency poses drastic changes to the mechanisms of law-making stipulated under the Constitution, it’s worth noting that Parliament does not necessarily have to be suspended. Article 150(2B) of the Constitution states that the Yang di-Pertuan Agong may promulgate ordinances as circumstances appear to require, except when both Houses of Parliament are sitting concurrently. Prime Minister Tan Sri Muhyddin Yassin’s announcement has made clear that the Cabinet and all state governments will continue to function as usual yet indicates that Parliament will not sit. This may be so as that the proclamation of emergency this time is not one for security or public order, as seen in the past, but rather to contain the spread of COVID-19. Even so, there appears to be no official reason as to the suspension of Parliament so as to require the YDPA to promulgate ordinances. This too is a cause for concern as it eliminates the system of check and balance provided in the Constitution that serves to hold the government accountable for their decisions at all times.


Indisputably, the COVID-19 cases have been on an alarming rise, yet there is much debate on whether an emergency would be significant to help the dire situation, especially as the proclamation comes after the reinstatement of MCOs and the implementation of tighter SOPs. With legislation such as the Prevention and Control of Infectious Diseases Act 1988 and the National Security Council Act 2016, the measures used to mitigate the pandemic seem to already replicate the responses previously used in Malaysia and those used globally in the effort to curb the pandemic. Senior Minister Datuk Seri Ismail Sabri Yaakob believes, however, that the ability to amend laws faster through the issuing of Ordinances can be crucial in the intention to increase the fines issued for breaches of MCO SOPs, especially with regard to larger establishments and companies. Without having to go through the lengthy process of amending the Prevention and Control of Infectious Diseases Act 1988, increased fines and possible jail sentences may be able to be imposed to deter breaking SOPs. Even so, the merits of increased fines have to be analyzed, especially if they are to apply to others, not just companies and larger establishments. This so as vulnerable individuals and groups have previously been issued the already heavy fines much to the protest of human rights groups, NGOs and individuals.


Despite almost 80 countries having invoked emergency over COVID-19, it truly is questionable that such measures are actually needed in Malaysia given the measures allowed under the aforementioned acts, especially when balancing against the threat of lowered interest of investors which may further disrupt economic life, the suspension of Parliament and the threat to the people's fundamental liberties and democratic freedoms. Nonetheless, the Palace’s official statement provides that the declaration is a proactive step in curbing the virus especially given the increased concerns over the floods in certain states. Notwithstanding, the Prime Minister has given assurance that this state of emergency will not disrupt life as we know it. The order will also assure Malaysians that some semblance of consistency in government and the lack of normalcy in efforts to contain the pandemic can be expected until August unless the pandemic clears.