The Malaysian Bar respects the constitutional powers of His Majesty, the Yang di-Pertuan Agong in exercising his prerogative to promulgate the Emergency (Essential Powers) Ordinance 2021 (“Ordinance”), which carries the rights of an act of Parliament. Nevertheless, we are concerned that the Ordinance which was gazetted on 14 January 2021, that strengthens the functions of the Government, has some significant issues.
Legal and fundamental rights cannot be abrogated during an Emergency. This includes an individual’s right to receive fair compensation for land and building acquisition. This is even more so when the breach of sections 3 and 4 of the Ordinance carries severe penalties.
Pursuant to section 10 of the Ordinance, “no action, suit, prosecution or any other proceeding shall lie or be brought, instituted or maintained in any court against the Government … appointed under subsection 6(1)” of the Ordinance. While this is only confined to a class of persons as defined within section 6(1), this still grants the Government and its agents immunity in situations of negligence and for medical negligence. The Malaysian Bar is of the view that a blanket immunity should not be extended as someone must be held accountable for mishaps that occur under the orders of the Government, be it in good faith or not. An ouster clause does not necessarily shield the Government from being sued for any breach of fundamental human rights. The wide-ranging powers under the Ordinance sends a chilling effect to ordinary citizens, since all the powers are concentrated in the Executive branch.
The Malaysian Bar is also apprehensive of the powers granted to the armed forces during the Emergency period. As provided under section 7(1) of the Ordinance, as long as the Emergency is in force, the armed forces will have the authority to arrest and detain, and possess the right of a police officer under the Criminal Procedure Code (“CPC”), as well as the authority vested in them under the Armed Forces Act 1972. The Malaysian Bar takes the view that police officers are trained in the manner of handling civilians and day-to-day disputes, whereas the armed forces do not have the requisite experience. We are concerned about the excessive use of powers by the armed forces when carrying out their duties. The Malaysian Bar hopes that the fundamental rights of individuals will not be compromised during the Emergency and in the course of implementing the Ordinance.
The Malaysian Bar feels that Parliament should be allowed to convene and be in session unless it is dissolved. This will provide checks and balances to the function and role of the Government even during the period of this Emergency.
The Malaysian Bar hopes that fundamental rights will not be compromised even during the Emergency and in the course of implementing the Ordinance. As propounded in the Federal Court decisions of Semenyih Jaya and Alma Nudo, the protection of the basic structure doctrine of the Federal Constitution and the fundamental rights of citizens should be safeguarded in any given situation. The rule of law is not some kind of receding mirage, but a fountain from which the nation draws its sustenance. Emergency or not, it forms the basis of a democratic system.
In light of the above, the Malaysian Bar calls upon the Government to exercise its Executive powers to only such an extent that is necessary to meet the particular needs of handling the COVID-19 pandemic, while upholding the rule of law and democratic rights of its citizens.
15 January 2021