©Malaysiakini (Used by permission)
by Andrew Khoo
On Nov 24 last year, the Dewan Rakyat passed a resolution annulling the three proclamations of emergency which had been in operation since the 1960s. On Dec 20, the Dewan Negara passed a similar resolution.
According to Article 150(3) of the federal constitution: ‘A Proclamation of Emergency and any ordinances promulgated under Clause (2B) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance, but without prejudice to anything previously done by virtue thereof or to the power of the ... Agong to issue a new Proclamation under Clause (1) or promulgate any ordinance under Clause (2B).'
Now that this has been done, Article 150(7) of the federal constitution comes into operation.
It states: ‘At the expiration of a period of six months beginning with the date on which a Proclamation of Emergency ceases to be in force, any ordinance promulgated in pursuance of the Proclamation and, to the extent that it could not have been validly made but for this Article, any law made while the Proclamation was in force, shall cease to have effect, except as to things done or omitted to be done before the expiration of that period.'
The starting date of the six–month period was Dec 20, 2011 and the ending date is June 19 this year.
Two major ordinances promulgated under the Proclamations of Emergency that are household names are those that established the Ikatan Relawan Rakyat (or Rela) and Rukun Tetangga (RT).
Rela came into force by virtue of the Essential (Ikatan Relawan Rakyat) Regulations 1966, while RT was created under the Essential (Rukun Tetangga) Regulations 1975.
New legislation to re–introduce Rela and RT were passed by both the Dewan Rakyat and the Dewan Negara in the recently–concluded session of Parliament.
When Parliament passed the replacement Malaysia Volunteers Corps Act 2012, it specifically provided in Section 1(2) that: ‘This Act comes into operation on June 22, 2012.' There is a similar provision in the Rukun Tetangga Act 2012.
This being the case, there is no legislation covering Rela or RT for June 20 and 21, 2012. So what happens?
Freeze on Rela, RT
It would appear that anything done by Rela or RT members June 20 and 21 (the ‘longest day' in the northern hemisphere) would be illegal. They would be illegal organisations for those days, because the old law would have ceased to operate, and the new law would not yet have come into effect.
It is submitted that any savings provisions cannot apply because the previous law has not been repealed but has ceased to have effect by virtue of the annulling of the Proclamations of Emergency. In any event, there is a break of two clear days which is not provided for.
No immunity for any so–called official act would extend to any Rela or RT official or personnel on those days. No orders or instructions would be legal or valid. They simply would not be able to operate.
No funding can be made available to finance any of their activities on that day, and any contracts hiring Rela or RT personnel for any special duties would not apply.
Indeed, on those two days Rela members will not even be able to attend any training or do any drills.
Under Section 6 of the Internal Security Act (ISA) 1960 (which has not been repealed as yet because its successor legislation has not yet come into force): ‘Any person other than a member of the armed forces or the police or of a volunteer force or local force constituted under any written law in force in Malaysia' who attends or takes part in training or drilling, or who trains and drills others, is guilty of an offence.
Neither Rela nor RT will have been constituted ‘under any written law in force in Malaysia' on those two days.
There are further provisions under Section 7 of the ISA that grant the minister the discretion to prohibit the wearing of uniforms or the use of insignia or emblems. He is, of course, unlikely to exercise that discretion in relation to Rela or RT.
Nonetheless, it will be two very curious days in June.
ANDREW KHOO is an advocate and solicitor in private practice.