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It was reported on 12 January 2021 that His Majesty, the Yang di-Pertuan Agong, has declared a state of emergency in Malaysia pursuant to the advice of the Prime Minister.1 A state of Emergency was declared due to the continuous spike in COVID-19 cases that has rendered our nation’s healthcare system to be excessively overloaded. Barely a day before, the Government had reimposed a Movement Control Order (“MCO”) to five states and three Federal Territories.
While most people can understand the need for a targeted MCO, the Government’s request for an Emergency Declaration appears to be overblown. The Government can exhaustively utilise to the fullest extent, a wide range of powers as provided by the Prevention and Control of Infectious Diseases Act 1988 (Act 342). Alternatively, the Government can invoke other pieces of legislation for the purpose of handling the pandemic situation in Malaysia.
Declarations of Emergency is the prerogative of the Yang di-Pertuan Agong following the advice of the Prime Minister. This is a power vested in the monarch, and the Malaysian Bar respects the wisdom and decision of the Yang di-Pertuan Agong to declare an Emergency, by virtue of His Majesty’s constitutional powers under Article 150(1) of the Federal Constitution. During a state of Emergency, our Constitution is temporarily suspended, and the Executive branch of the Government will handle the administration of the country. The Parliament does not sit during a state of Emergency, therefore the Yang di-Pertuan Agong can promulgate laws known as ordinances, which are laws for emergency purposes.
The Malaysian Bar hopes that a Declaration of Emergency will not put our democracy and rule of law at peril, as there will be few, or almost no mechanisms, to act as checks and balances on the exercise of that power. We hope that any law intended by the Executive for the purpose of strengthening enforcement to curb the spread of COVID-19, will not be unduly harsh. The Malaysian Bar is equally concerned about the ramifications that this Emergency will have on human rights and civil liberties, as ordinary legal procedures need not be followed when Parliament makes laws.
Ample public health and sanitisation measures are sufficient to be put in place under existing laws without making a request for a Declaration of Emergency. This Declaration of Emergency will act as a circuit breaker for internal political noises and will halt any elections from happening, until and unless the COVID-19 curve flattens. However, this would inevitably have an impact on some frontiers, including our economy and constitutional rights.
The Malaysian Bar calls on the Government and political parties to prioritise the welfare of the rakyat during their battle against COVID-19. The country needs to focus on rebuilding a resilient economy for the sake of the nation. Even though an Emergency has been declared, the rule of law should nevertheless be safeguarded, at all times.
Salim Bashir
President
Malaysian Bar
13 January 2021
1 “Agong assents to Emergency until August 1, or until Covid-19 comes under control”, Malay Mail, 12 January 2021.