Constitutional Law 2 MMU Melaka

1. Nelfi Amiera Mizan
Multimedia University
Article 150
Most constitutions in various countries have provided a provision for the
exercise of special powers to deal with crisis. In Malaysia, the wide and arbitrary
powers are divided into two types under Article 150, power to combat emergency
and Article 149, power to deal with subversion. Even though both provisions may
lead to various abuses, however there are still needs for such provisions. In order to
curb the abuses, there must be proper check to uphold the ideal of constitutionalism.
Under Article 150(1), it gives the Yang di-Pertuan Agong (YDPA) power to
issues Proclamation of Emergency, if he is satisfied that a grave emergency exists
as the security, economic life or public order in the Federation or any part thereof is
threatened. Under Article 150(2), the proclamation maybe issued even before the
actual occurrence of the threatened event as long YDPA satisfied there is imminent
danger. This situation would occur when the Government had reliable intelligence
report indicating some security threat. While Article 150(3) allows two or more
validly overlap emergency proclamation besides the later does not impliedly revoke
the other. For example, the 1977 emergency relating to Kelantan had overlapped
with emergency during May 13th incident in 1969.
In Stephen Kalong Ningkan v Government of Malaysia, the Privy Council
defines the word ‘emergency’ as ‘capable of covering a very wide range of situations
and occurrences including wars, famines, earthquake, floods, epidemic and collapse
of the civil government’. However, the occurrences must be grave as to threaten the
security or economic life of the Federation.
From the above articles, there are 2 controversies as to the declaration of
emergency such as whether the YDPA must act on advice of the government or
might act on his discretion. Thus, in short, who actually has the power to declare
emergency. In Abdul Ghani Ali v PP, the Federal Court agrees with the opinion in
the case of Teh Cheng Poh v PP which stated that the YDPA does not have a
personal discretion under the Article 150(1) but has at all-time act on the Cabinet
advice. It is submitted that the proclamation of emergency by YDPA is not free from
the constitutional requirement to act in accordance with the advice of the Prime

2. Minister (PM) under Article 40(1). Therefore, the power to declare emergency is of
the federal power not on discretion of YDPA.
On a different view in PP v Mohd Amin Mohd Razali, the High court held that
if Parliament is sitting and the cabinet is in existence, the YDPA must exercise his
powers on the advice of government. Nevertheless, during dissolution of Parliament,
there is no Cabinet in existence thus; the YDPA may issue Proclamation of
Emergency on his discretion. Besides, the decision will look more realistic, sensible
and closer to democracy as the caretaker government have no power to declare
emergency in a situation such as the military coup d’état.
The consequence of an emergency proclamation is that the executive
acquires plenty of law making powers, the Parliament’s legislative power has
broaden, separation between federal and state executives and law making powers
by delegated authorities.
Firstly, the YDPA will have power to legislate. Under Article 150(2B), when
parliament is not sitting and at the same time emergency is declares, the YDPA have
power to make any ordinance (law) as he satisfied that it is necessary for him to take
immediate action. The ordinances require no procedures and no vote in Parliament.
This provision has given wide discretionary power to the YDPA.
Besides that, power given to YDPA is widen under Article 150(2C) where the
ordinance shall have the same force and effect as in the Act of Parliament. In
Johnson Tan Han Seng v PP, there are 4 appeals to be heard. The appellants
were charged under the Internal Security Act 1960 and some were sentenced to
death and life imprisonment. Harun J, in the first instance court decided that the
1969 proclamation has lapse since a period of 7 years has passed. However, on
appeal, the Federal Court disagree with the decision and referred to Article 150(3)
and decided the Proclamation of Emergency stops to have effect only if it is revoked
or Parliament by resolution annuls it. After the Constitution (Amendment) 1960, now
an Emergency Ordinance has no fixed time duration. It can last until it is revoked by
YDPA or annulled by parliament under Article 150(3) or till it lapses after 6 months
on the termination of emergency under Article 150(7). However, if emergency is not
removed, the state of emergency will continue as happened in Malaysia where we
Nelfi Amiera Mizan
Multimedia University

3. are still in state of emergency since 1964 before it has been removed a few years
back.
Secondly is the enhancement of Parliament’s legislative powers. Under Article
150(5), parliament may make laws with respect to any matters, as long parliament
satisfied that it is required by reasons of the emergency. Moreover, any restrictions
imposed by the Constitution or any written law requiring any consent, concurrence or
consultation or restricting the enforcement of law is inapplicable. Besides, the
consent of the Conference of Rulers and the Governors of Sabah and Sarawak is
not needed. Emergency legislation can be enacted only by a simple majority of those
present and voting. Furthermore, Article 150(6) provided that, following a
proclamation, an Act of parliament which appears to be required by reason of the
emergency, no provision of such Act can be invalidated on the ground of
inconsistency with any provision of the Constitution. However, the supremacy of
emergency law does not extend to constitutional provision with respect to Islamic
law, Malay custom, native custom in Sabah and Sarawak, religion, citizenship or
language as stated in Article 150(6A).
Thirdly, under Article 150(4), during the continuance of an emergency, the
separation of the federal and state executives is being suspended. This is due to the
federal executive authority extends to any matter within the state government. Thus,
the federal government has control over the state government.
Fourth, due to proclamation, delegated authorities also may enact emergency
laws. Whatever parliament can do, it can authorise a delegate to do on its behalf. As
in Eng Keock Cheng v PP, the court held, during an emergency, fundamental rights
can be violated even by way of delegated legislation.
ADD 4 EVENTS ON EMERGENCY DECLARATION (konfrontasi + swak+
Kelantan + 13th May)
By abstracting the consequences of an Emergency Proclamation, it can be
seen that, a wide and arbitrary powers has been given to the branches of
government. Thus, some control should have been taken to limit the emergency
powers given. Such control and security can be implemented by the Judiciary,
Parliament and Executive.
Nelfi Amiera Mizan
Multimedia University

4. Firstly for Judiciary, is the issue relating to the judicial control over a proclamation is
stated under Article 150(8). Before 1979, in the case of Stephen Kalong Ningkan,
Federal Court had held a proclamation was not justiciable. However in 1979, in Teh
Cheng Poh’s case, the Privy Council indicate that it would probably have held an
emergency proclamation justiciable as it was held that the continuance of a security
area proclamation under the Internal Security Act 1960 is justiciable.
However, Article 150(8), which was introduced in 1981 as a result from The Cheng
Poh’s case, it sought to prevent the intrusion of judicial review on matters where (a)
the satisfaction of YDPA regarding the proclamation and ordinances, shall be final
and conclusive and not be challenged or called into question in any court on any
ground and (b) no court shall have jurisdiction to entertain any application , question
or proceedings regarding the validity of a proclamation, the continued operation of
such Proclamation, any ordinances promulgated under clause (2B) or the
continuance in force of such ordinance. However, in a country with constitutional
supremacy, question on constitutionality can never be removed from judicial review.
The decision by YDPA only refers to valid decision. An invalid decision is a nullity.
For example, if the authenticity of the proclamation is in doubt, judiciary may actually
review.
Secondly for judiciary is the issue of judicial review of Emergency Ordinances and
Acts. In the context of emergency law under Article 150(6A), it is clear that 6
sensitive issues cannot be trifled with. If Parliament or YDPA unconstitutionally
legislate relating those 6 issues, judicial review may be implemented.
Third for judiciary, judicial review may be implemented if the subsidiary legislation be
declared invalid if they ultra vires the enabling law or inconsistent with Article
150(2B), 150(6A) and 151.
On the other hand, Parliamentary control is first over the Proclamation itself. Under
Article 150(3), it requires the proclamation of emergency and also the ordinances to
be laid before both Houses of parliament. Failure to lays could be treated as a fatal
defect causing the emergency proclamation to lapse. In Lim Woon Chong v PP,
there was an allegation that the 15th may 1969 Proclamation was not submitted to
Parliament’s scrutiny when it reconvened. However, court found out that the
Nelfi Amiera Mizan
Multimedia University

5. proclamation had in fact been laid. This shows that how important for the
proclamation to be laid upon the Parliament. Similarly, in IGP v Lee Kim Hoong,
court held that the lying requirement is mandatory and the effect of non-compliance
is that the ordinance ceases to have effect after parliament convenes.
For the executive control, the check on the exercise of emergency powers is
contained within the executive itself. As if, the Prime Minister cannot present such
advice to the YDPA with decision of the Cabinet. Thus, an emergency cannot be
proclaimed unless the Cabinet, which comprises members of several political parties
and all races, agrees.
Nelfi Amiera Mizan
Multimedia University