Unconstitutional - You Cannot Proclaim A State Of Emergency Without The Consent Of Parliament

Unconstitutional - You Cannot Proclaim A State Of Emergency Without The Consent Of Parliament

Remember the halcyon days at the start of the year when Malaysia had seen a peaceful transition of power and was governed by the ruling majority in an elected government?

The people responsible for the up-turning of that proper state of affairs (by deserting the parties they were elected to support) are currently the ones calling for authoritarian powers to deal with a political crisis that is entirely of their own making.

They even admit there is no real ‘Emergency’ except with regard to their own survival since they still don’t have the majority needed to command Parliament and pass the budget. Covid is merely window-dressing, which they are using to claim that Parliament must be sidelined as the only alternative is an election during the pandemic.

That is a lie, and to avoid being shown up they are refusing to allow Parliament to sit, which would enable others to demonstrate they have the majority instead.

No, they claim, there has first to be an election. But, thanks to the wonderful gift of Covid which these coup mongers totally ignored when they unleashed their rebel plot right at the start of the pandemic, they claim an election cannot be held.

This despite the fact they just did so in East Malaysia, having equally destabilised the state of Sabah through their illegal rebel activities, buying over state MPs. Their negligent method of campaigning during this unnecessarily destabilised situation appears to have created a spike of cases in the state. It didn’t stop them.

The largest democracy in the world is presently also conducting an election, despite a far worse pandemic, because the liberty and upholding of the Constitution that Malaysia’s coup mongers are so keen to cast aside are precious hard won rights that people fail to stand up for at their darkest peril.

Azmin and Moo would rather just be given the opportunity to rule as they like without tiresome legal constraints and with a handy military to back them up – who thinks they will give that up when Covid is gone? States of Emergency, especially those of the political kind as opposed to the genuine kind, have a habit of extending forever. Crooks can’t risk retirement.

The ‘official’ announcements of the past 24 hours have said it all. The illegitimate minority government led by the rebel duo have ‘explained’ they need their emergency powers to ram through a budget and rule (a.k.a. plunder) without Parliament because of Covid.

On the other hand, the announcements say, the Covid is not so bad that anyone will have to change the way they are presently going about their business under the restrictions in place. Malaysia has recorded a mere 204 deaths across the year, which is less than other countries by far and many other conditions that receive relatively little attention.

According to reports PN are openly admitting this is merely a ‘stay at home order’ for Parliament and no one else:

an article posted on the PN backbenchers club website described the emergency declaration as a “health emergency” to address rising Covid-19 cases …
“However, the public will not have to worry. This is not a stay-at-home order. They can still leave their homes to buy necessities on condition that they follow government guidelines,” [not even a real health emergency – Malaysiakini]

It is blatantly apparent that the coup mongers have embraced Covid merely because of the opportunities it has afforded to crack down, cover up and cling on to power. Malaysians know that because of the haughty way in which these politicians have ignored the rules themselves and failed to concern themselves with the tragic consequences of poorly implemented policies for some of the most vulnerable communities which rescue measures have not reached.

UNCONSTITUTIONAL

The rebel coup leader, Muhyiddin Yassin, also known as the unelected ‘PM8′, spent a lengthy couple of hours with the Agong yesterday begging him to agree to plunge his country into a bogus State of Emergency, so that he and his rag tag coalition of MPs (practically all of whom have been given Cabinet posts and are thoroughly enjoying it) can avoid testing their legitimacy.

In a most sinister move this minority political leader was also accompanied by the Chief of the Armed Forces. The message is clear – Muhyiddin and Azmin are ready to govern by force, despite the total absence of a foreign threat and total absence (so far) of street protests of any kind as patient Malaysians have kept their growing anger to themselves out of respect for the present health situation.

Even the Agong, who has favoured Muhyiddin for months, granting him the opportunity to form a government when he neither lead a political party nor held a majority support. The Agong has refused to see major party leaders to discuss Anwar’s more credible bid to run the country, under the guise of Covid, whilst entertaining others all the same… including Muhyiddin yesterday.

Now, the Agong is rightly wavering. To agree to reject the calling of Parliament and to call a State of Emergency in order to prop up a fallen political leader, granting him authoritarian and military powers, would be a decision with the gravest of political consequences.

If the Agong were to agree to it then he will have moved to nip Malaysia’s move to genuine political democracy in the bud and he will have shown it for a sham. He will have also abused his position under the Constitution supplanting the abuse of power in place of the rule of law.

He has indicated he wants to discuss the matter with his fellow Council of Rulers, but that is not how the country is set up. The Sultans of Malaysia may bask in fantastic wealth that has somehow arrived in their pockets instead of the pockets of their subjects and they may consider themselves hugely influential and are of course tied up in all the profitable businesses of their states. However, their position under the law is clear cut – they are constitutional rulers in a parliamentary democracy.

If the Council of Rulers were to agree to interfere in such a way and connive in the abuse of the Constitution by assisting in the calling of a bogus ‘State of Emergency’ to prop up a failing illegitimate regime that might well have set out to appeal to their various business interests, it is fairly certain that history will not favour those self same rulers in the longer term.

Either a furious public will punish them or their descendants by consigning them to constitutional irrelevance at a later date… or worse, the forces they will have unleashed will not appreciate rivals in the driving seat. Dictators soon elbow aside kings or stick them as rubber stamps on top of military governments.

So grave has this situation now become that a rare voice has now spoken out in this crisis. The former Attorney General, Tommy Thomas, who had brought objectivity and decency to the role which he immediately resigned following the appointment of ‘PM8,’ has till now preserved a largely silent position, giving space to his successors.

However, today he has laid out the legal facts about this race to grab emergency powers to by-pass Parliament. The reason? It is simply unconstitutional and a gross violation of the laws of the country.

He begins “I have since March scrupulously adhered to the convention that it is not proper for a former public officer to comment on the merits or demerits of policies and decisions made by his successor. But last night’s announcement that the Prime Minister requested the Yang di-Pertuan Agong to declare a national Emergency imposes a responsibility on me not to remain silent.”

And his advice to the Agong is unremitting. Do not fall for the pleas of a Prime Minister seeking to abuse Article 150 of the Constitution on Emergency Powers simply to keep power:

A Proclamation of Emergency under Article 150 of the Federal Constitution has tremendous negative consequences on the nation’s body politic and the exercise of freedoms and liberties by our citizens. Hence, the reluctance to rush into it…. Because the ramifications of an emergency are massive, the Constitution has placed many safeguards against its use. The most obvious and most frequent abuse occurs when the Prime Minister of the day feels threatened as to his security of tenure. Hence, checks and balances are built into Article 150….

READ THE FULL STATEMENT BY THE FORMER AG TOMMY THOMAS:
Declaring Emergency Would Be Unconstitutional:

Declaring Emergency Would Be Unconstitutional

1. I have since March scrupulously adhered to the convention that it is not proper for a former public officer to comment on the merits or demerits of policies and decisions made by his successor. But last night’s announcement that the Prime Minister requested the Yang di-Pertuan Agong to declare a national Emergency imposes a responsibility on me not to remain silent. Hence, with a heavy heart, I pen my thoughts on the legality of the proposed move.

2. A Proclamation of Emergency under Article 150 of the Federal Constitution has tremendous negative consequences on the nation’s body politic and the exercise of freedoms and liberties by our citizens. Hence, the reluctance to rush into it. The opprobrium attached to emergencies led the government in October 2011 to revoke 4 Proclamations which had marred our national psyche. The Prime Minister was then Deputy Prime Minister. Because the ramifications of an emergency are massive, the Constitution has placed many safeguards against its use. The most obvious and most frequent abuse occurs when the Prime Minister of the day feels threatened as to his security of tenure. Hence, checks and balances are built into Article 150, which has 13 sub-articles within it. It is a comprehensive code, and is the starting point of any discussion.

3. Article 150(1) provides that if the Agong is satisfied that a grave emergency exists whereby the security or the economic life or public order in Malaysia is threatened he may issue a ProclamationofEmergency. Malaysiaisaconstitutionalmonarchy,andtheAgongactsonadviceof the Prime Minister insofar as Article 150 is concerned. Hence, the true decision maker is the Prime Minister, but the King has a residual discretion. In other words, it is not automatic that every time a Prime Minister desires a Proclamation, the Agong must agree to it. The Agong is entitled to seek the advice of the Conference of Rulers, or indeed anyone whose advice the Agong values.

4. But for Article 150(1) to come into play, the conditions in the country or the circumstances are such that:

  1. (i)  grave emergency exists;
  2. (ii)  whereby security;
  3. (iii)  economic life; or
  4. (iv)  public order;
  5. (v)  is threatened.

None of these terms are defined in the Constitution. Thus, they must be given their natural and ordinary meaning. Additionally, the draftsmen of the Constitution placed an important safeguard: it is not any emergency, but one that is “grave”. This distinguishers it from a crisis or an “ordinary” emergency. It must be serious in nature, scale or magnitude.

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5. It is difficult to find a single rational argument to support a case that there is a “grave emergency” today in Malaysia for whatever reason. Covid-19 has been with us since January. When it suits this government, it has boasted about how well they combated and contained the spread of Covid-19. And they have objective grounds to make this claim, having regard to the performance of other countries. Hence, on a relative and comparative scale, Malaysia has handled Covid-19 well. But the same government cannot then claim that overnight, Covid-19 has became so “threatening” that we have a “grave emergency”. However, terrible Covid-19 is in Sabah, it does not warrant the declaration of a national emergency.

6. Although Covid-19 is the publicly stated reason, none of us are fooled. The true reason is that this Prime Minister is not confident that the Budget of his Minister of Finance will be passed by the Dewan Rakyat when voted upon in early December. That would result in a lack of confidence in his government. They must resign then. Hence, the real reason is to ensure the survival of the Prime Minister in office. You reap what you sow. If you assumed power without being elected by the people of Malaysia, the same fate awaits you. You cannot stay in power by stopping others from aping you. That sums up the so-called case for an emergency. It is so self-serving that constitutionally, the Prime Minister is conflicted in seeking a Proclamation of Emergency solely to stay in office. His private interests are in conflict with his public duty.

7. Let me briefly consider the 3 pre-conditions in Article 150(1): security, economic life or public order. It is impossible for the Prime Minister to argue that the security of Malaysia is in any way affected by whether he continues to remain in office. Likewise, public order. That leaves “economic life”. This precondition has no application. Note that “health” is not a ground. This is hardly surprising. Nations have over centuries been affected by plague, tuberculosis, the Spanish flu and other contagious diseases. But they do not justify a national emergency. Ample public health and sanitisation measures can be put in place under the ordinary laws of the land, without resorting to emergency powers. In these circumstances, there are no legal grounds for the Proclamation of Emergency in Malaysia today. It would therefore be unconstitutional.

8. Although an ouster clause is found in Article 150 (8), having regard to the development of constitutional law in seminal cases like Indira Gandhi and Semenyih Jaya, it can certainly been argued that the Courts can review a decision to declare emergency. Nearly half a century ago, the Teh Cheng Poh case considered the limits of the power of the Executive to declare emergencies. A recent foreign example is illustrative of the worldwide trend in common law: the Brexit decision of the Supreme Court in the United Kingdom. In my opinion, a Proclamation of Emergency in present circumstances is justiciable before our courts.

9. A supreme irony is that the Prime Minister and his Finance Minister desire Parliament to be suspended, and for the Budget to be enforceable by executive action. This again would be unconstitutional because it would violate 3 sub-articles in Article 150 itself. Thus, Article 150(3)

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requires the Proclamation to be laid before both Houses of Parliament. More significantly, the Proclamation shall cease to have effect if resolution is passed by both Houses “annulling such Proclamation”. Article 150(5) provides that while a Proclamation is in force, “Parliament may make laws if it appears to Parliament the law is required. Finally, Article 150(9) states that the Houses of Parliament should be regarded as sitting “only if the members of each House are respectively assembled together and carrying out the business of the House”.

10. It is plain and obvious that proclaiming an emergency does not have the intended result. Parliament continues to perform its duties. Hence, the Dewan Rakyat should sit in the normal way for the important budget session in early November, as scheduled.

11. One would expect the Minister of Finance, as an ex-banker, to advise his Prime Minister of the grave consequences to the economy if emergency is declared. The rating agencies will immediately down-grade our ratings, which mean that borrowing costs will become more expensive, and perhaps even more difficult. The share market will plunge, the ringgit will plummet and business confidence shattered. All these predictable consequences would be self-inflicted solely to allow one man to remain as Prime Minister. Hence the “economic life” of Malaysia demands no emergency. Period.

12. For all these reasons, I implore the Prime Minister to withdraw this option. Rather, the problem is created by the 222 Members of Parliament. The solution therefore lies in their hands. If that means, the Prime Minister and his political opponents have to spend next week horse-trading and bargaining for inclusion in a true unity government, they must undertake that with a spirit of consensus and compromise. The people of Malaysia, whom you are supposed to represent, are absolutely disgusted with the present state of affairs. The last thing we want is a national emergency caused solely by the ambitions and greed of politicians.

Tan Sri Tommy Thomas 24th October 2020

The Constitution, explains Thomas, required that the Agong has to be persuaded that “a grave emergency exists whereby the security or the economic life or public order in Malaysia is threatened”.  For it is he who must issue a Proclamation of Emergency to counter such a threat – not something done lightly or controversially as this would be. The accent is on grave.

Tommy Thomas makes clear the entire country is aware that Malaysia is not in a grave emergency, certainly compared to the 180 other countries in the world who have refrained from states of emergency owing to the pandemic. Malaysians know this is about saving the job of ‘PM8′ and his fellow coup conspirators in office:

It is difficult to find a single rational argument to support a case that there is a “grave emergency” today in Malaysia for whatever reason. Covid-19 has been with us since January. When it suits this government, it has boasted about how well they combated and contained the spread of Covid-19. And they have objective grounds to make this claim, having regard to the performance of other countries. Hence, on a relative and comparative scale, Malaysia has handled Covid-19 well. But the same government cannot then claim that overnight, Covid-19 has became so “threatening” that we have a “grave emergency”. However, terrible Covid-19 is in Sabah, it does not warrant the declaration of a national emergency.

6. Although Covid-19 is the publicly stated reason, none of us are fooled. The true reason is that this Prime Minister is not confident that the Budget of his Minister of Finance will be passed by the Dewan Rakyat when voted upon in early December.  That would result in a lack of confidence in his government. They must resign then. Hence, the real reason is to ensure the survival of the Prime Minister in office. You reap what you sow. If you assumed power without being elected by the people of Malaysia, the same fate awaits you.

It gets worse, says the former AG, because the Agong is being advised by a Prime Minister who is conflicted. ‘PM8’s advice is not driven by his view of the interests of the country, but by his own self-serving interests:

“You cannot stay in power by stopping others from aping you. That sums up the so-called case for an emergency. It is so self-serving that constitutionally, the Prime Minister is conflicted in seeking a Proclamation of Emergency solely to stay in office. His private interests are in conflict with his public duty.”

However, the real nub of the unconstitutionality of this move is identified absolutely clearly by the AG in pointing out that the constitution demands that any such proclamation by the King MUST be approved by Parliament itself.

The Parliament that ‘PM8′ seeks to suspend using this very proclamation!

A supreme irony is that the Prime Minister and his Finance Minister desire Parliament to be suspended, and for the Budget to be enforceable by executive action. This again would be unconstitutional because it would violate 3 sub-articles in Article 150 itself. Thus, Article 150(3) requires the Proclamation to be laid before both Houses of Parliament.

Story over. The move to Proclaim a State of Emergency without the support of Parliament is illegal and unconstitutional. The Agong needs to recall Parliament to sort out this imposter and his crew of unelected opportunists, who have plundered and abused their roles under the cover of Covid for very many months, and return to a majority government.

He needs to begin by doing what he ought to have done in March, which was to offer the opportunity to form a government to the party leader with the most support. That was not ‘PM8′ who was not a party leader and who had no support. It was and remains Anwar Ibrahim.

Moo must step aside along with his shameless side-kick Azmin Ali and stop running this wrecking ball through the liberties of the Malaysian people.

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