—Dian A H Shah, National University of Singapore Faculty of Law
The old Malay proverb “terlepas dari mulut buaya, masuk ke mulut harimau” (literally translated as “out of the crocodile’s mouth, into the tiger’s mouth”) seems to be an apt description for Malaysia in the new year. The government, having just re-implemented stricter restrictions in five states to manage the rapid rise in Covid-19 infections, imposed a nationwide state of emergency on 12 January 2021. This is the second attempt at imposing a state of emergency, which – unlike the first attempt in October 2020 – received assent from the Yang di-Pertuan Agong (YDPA), the constitutional monarch. This time, the government justified its decision on the basis of a threat to the economic life of the nation posed by the Covid-19 pandemic.
To be sure, Malaysia’s resort to emergency powers in dealing with the Covid-19 crisis is not unique – countries such as New Zealand, Japan, The Philippines, and Thailand have previously made such declarations. However, despite assurances from Prime Minister Muhyiddin that the emergency declaration is intended to combat the spread of the Covid-19 infection and that it is not a military coup, nor will it be used to enforce a curfew, there are reasons to be apprehensive. First, during the first wave of infections in 2020, Malaysia has successfully controlled the pandemic through ordinary regulations and laws. Second, the timing of the emergency proclamation suggests that the decision was mainly driven by political imperatives.
Since the internal political coup that led to a change of government in February 2020, Malaysia has been plagued by political instability and threats of yet another change of government. The current government coalition (led by Prime Minister Muhyiddin’s party, BERSATU, with 31 seats in the 222-seat Parliament) has lost majority confidence in Parliament after two government MPs withdrew their support this month. This emerged amidst deteriorating relations between UMNO (a party within the ruling coalition) and BERSATU. Indeed, UMNO announced that it is reconsidering its membership in the coalition, and in December 2020, a successful vote of no-confidence in the state of Perak saw the replacement of the BERSATU-led state government with an UMNO-led government. In October 2020, amidst attempts by the Opposition (allegedly with support from several government MPs) to oust the Muhyiddin government through a vote of no-confidence, the Prime Minister had already sought to invoke a state of emergency.
In addition to the political melee, emergency declarations in Malaysia must be considered in light of how they have been historically invoked and utilized. Previously, a state of emergency has enabled the passing of laws to suppress fundamental rights and political dissent, and facilitated government abuses of power. There is also a risk of prolonged state of emergency: one might recall that in 1969, the government declared a state of emergency in response to racial riots in the country and this was only officially lifted in 2011. What is clear – at least for the moment – from the recent declaration is that two fundamental aspects of a functioning democracy have been suspended:[1] Parliament and state legislative assembly sittings and electoral processes. Against this background, this post examines several constitutional issues that have and could arise following the imposition of a state of emergency in Malaysia.
Declaring an Emergency: Justifications and the Role of the Monarchy
An immediate constitutional question is whether the state of emergency was justified and properly invoked. This question also implicates a broader constitutional issue, ie the role of the YDPA in Malaysia’s governance, and highlights the integrity of Malaysia’s constitutional arrangements and conventions relating to the monarchy. Article 150(1) provides that the YDPA may proclaim an emergency if he is satisfied that a grave emergency exists whereby the security, or the economic life, or public order of the country is threatened. In line with Westminster conventions (which are expressly constitutionalized in Article 40), the YDPA acts on advice of the Cabinet (including in proclaiming an emergency) and possesses limited discretionary powers[2]. In addition, case law has firmly established that in being so satisfied about the need to proclaim an emergency, he is to act on the Cabinet’s advice.[3]
As mentioned above, it appears that the Prime Minister’s representations to the YDPA were rooted in the threat that the Covid-19 pandemic posed to the economic life of the nation. This may well be factually true (indeed it was previously reported that the country lost 2.4 billion Malaysian Ringgits everyday during the Movement Control Order), but the necessity and proportionality of invoking an emergency is rather suspect, particularly when it allows virtually unlimited Executive authority and when there are existing laws to manage infectious diseases. The Prime Minister’s announcement about the suspension of democratic processes only fuels suspicions about the political motives behind the decision to impose a state of emergency. As it stands, however, the “satisfaction” of the YDPA – whatever the genuine reasons might be – cannot be legally challenged.
Law-Making Powers and Fundamental Liberties
Even though most Malaysians have lived in a state of emergency for some part of their lifetime (recall that an emergency was in force from 1969 to 2011), there is still a great degree of confusion about its implications. In those thirty-odd years, Malaysia experienced significant social and economic development; periodic elections were held; and both federal and state legislative assemblies continued to operate. Yet, as soon as the recent emergency was proclaimed, there were suggestions that the Constitution is suspended or ceases to function, and that the YDPA now possesses complete law-making authority. These are not just grossly incorrect; given Malaysia’s fragile social and political contexts, such suggestions may undermine constitutional government and a healthy constitutional democracy in the long run.
To be clear, the Constitution continues to operate during a state of emergency. In fact, the Constitution stipulates certain restrictions on laws promulgated pursuant to an emergency declaration (namely, on preventive detention as provided in Article 151) and does not exclude the role of the Parliament as the law-making institution (Article 150). The Constitution also spells out the duties and authority of the YDPA and the Executive during an emergency. The YDPA may promulgate ordinances having the force of an Act of Parliament when both Houses of Parliament are not sitting concurrently and where he is satisfied that it is necessary to take immediate action. Even then, such ordinances and the emergency proclamation must be laid before both Houses once they convene, and the ordinances and proclamation would cease to have effect if they are annulled by the Parliament. Crucially, contrary to emergent perceptions, the proclamation of an emergency does not trigger an automatic suspension of Parliament or any electoral processes. Finally, with regard to fundamental liberties, what is clear is that the Executive is afforded wide law-making powers. The Constitution sanctions the suspension of constitutional rights guarantees except in matters relating to Islamic law, Malay customs, native law or customs in the East Malaysian states of Sabah and Sarawak, religion, citizenship, and language.
In the meantime, as Malaysians grapple with a fresh imposition of the Movement Control Order (MCO), the effects of invoking exceptional emergency powers are slowly being brought to light. On January 14, the Government gazetted the Emergency (Essential Powers) Ordinance 2021 promulgated by the YDPA, presumably on the advice of the Prime Minister as per entrenched constitutional conventions. Among other provisions, the Ordinance authorizes temporary acquisition of any land, building or movable property; directions for treatment, immunization, isolation, observance or surveillance; and conferral of full police powers upon the armed forces. More crucially under existing political conditions, the Ordinance cements the suspension of any parliamentary sitting and elections and provides that the existing government shall continue to exercise authority “so long as the emergency is in force”.[4] The necessity and proportionality of these measures are again questionable.
As the situation continues to evolve, it is important to monitor what, how, and when laws are promulgated pursuant to these exceptional powers. The current emergency is – for now – effective until August 1, 2021. What, then, becomes of the Parliament’s role as one of the three branches of government? Given the provisions on the suspension of Parliament, it would appear that as long as the emergency is in force, there is technically no opportunity to present the Ordinance and the emergency proclamation for Parliamentary approval. Although Article 55 of the Constitution requires that Parliament to convene within six months of the last sitting, Article 150(6) allows ordinances to derogate from any other constitutional provision. All this strikes at the very heart of Malaysia’s constitutional democracy.
The more worrying scenario, which could necessitate a constitutional challenge and judicial intervention when it arises, is if the emergency proclamation is extended beyond August 1 and the Ordinance continues to be in force (or if a new emergency is proclaimed). This is because an extension could prolong the suspension of Parliament (and thus halting the functioning of a constitutional democracy, including elections), unless the YDPA deems that it is “appropriate” to reconvene Parliament.[5]
Political Significance
Constitutional issues and public health urgencies aside, it is clear that the MCO, the emergency proclamation, and the Emergency Ordinance have provided a lifeline for Prime Minister Muhyiddin’s political survival. At the same time, public opinion is divided. On the one hand, there is growing discontent over power battles and political instability, which has arguably contributed to the incompetence in dealing with the Covid-19 pandemic. In particular, Malaysians are reminded of how such battles led to the collapse of the Sabah state government in September 2020, which necessitated elections even as infections surged in the state. There is also some apprehension that the fall of the current government would pave way for snap elections, and this could return UMNO (which lost the elections in 2018) to power. Thus, an emergency is widely seen as a stop-gap measure against the perils of democracy. On the other hand, there are concerns about the short-term and long-term implications of a state of emergency. As I mentioned at the beginning of this article, there is a history of prolonged state of emergency, which allowed the government to secure its political position by suppressing fundamental liberties and political dissent.
One might also recall that just a few months ago, amidst a potential loss of support in Parliament and surging Covid-19 cases following the Sabah election, Muhyiddin had advised the YDPA to declare an emergency. However, for the first time in Malaysia’s constitutional and political history, the YDPA officially rejected the advice of a Prime Minister. The paradox is that what could arguably be deemed a monarchical overreach has also “saved” democracy from the hands of unscrupulous political actors bent on ensuring their political survival.[6] Yet, although there was considerable public support for the YDPA’s decision, it creates a risky precedent in relation to established constitutional conventions on “acting on advice”. This issue is magnified by the revived authority of the monarchy embracing – as Harding notes – Eastminster ideas rather than Westminster conventions in the past decade or so. If advised to extend the state of emergency, will the YDPA heed such advice? Will (or can) the YDPA reconvene Parliament if he deems it appropriate, even in absence of government advice to do so? Under what circumstances can the judiciary step in to “check” on exercises of power during an emergency?
The answers to these questions will determine the trajectory of Malaysia’s constitutional democracy in the months and years to come. But in the meantime, Malaysian constitutional politics continues to generate fascinating constitutional conundrums as the country navigates through its fragile democracy.
Suggested citation: Dian A H Shah, Malaysia’s Game of Thrones amid a Pandemic: Constitutional Implications and Political Significance of the State of Emergency, Int’l J. Const. L. Blog, Jan. 17, 2020, at: http://www.iconnectblog.com/2021/01/malaysias-game-of-thrones-amid-a-pandemic-constitutional-implications-and-political-significance-of-the-state-of-emergency/
[1] See Prime Minister’s Office (PMO) of Malaysia, Speech Text of The Special Announcement of Emergency, Jan. 12, 2021, at: https://www.pmo.gov.my/2021/01/teks-ucapan-pengumuman-khas-darurat/.
[2] Under Article 40(2) the YDPA may exercise his discretion in relation to three functions: (1) the appointment of a Prime Minister; (2) the withholding of consent to a request to dissolve Parliament; and (3) calling a meeting of the Conference of Rulers concerned only with the privileges, position, honours, and dignities of Their Royal Highnesses.
[3] See Andrew Harding, Acting (or Not Acting) on (Lawful or Unlawful) Advice in Malaysia: From Windsor to Kuantan and Back Again, Int’l J. Const. L. Blog, Nov. 20, 2020, at: http://www.iconnectblog.com/2020/11/acting-or-not-acting-on-lawful-or-unlawful-advice-in-malaysia-from-windsor-to-kuantan-and-back-again/.
[4] Sections 11 – 14, Emergency (Essential Powers) Ordinance 2021.
[5] Sections 12(6) and 14(1)(b), Emergency (Essential Powers) Ordinance 2021.
[6] See Dian A H Shah, Political Change and the Decline and Survival of Constitutional Democracy in Malaysia and Indonesia, IACL Blog, Nov. 18, 2020, at: https://www.iacl-democracy-2020.org/blog/2016/3/23/blog-post-sample-9wntn-6ye75-hwawc-j4nb6.
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