The Book of Prof Shad.docx

1979 2 mlj 264 there was an allegation that the may

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[1979] 2 MLJ 264, there was an allegation that the May 15 th 1969 Proclamation was not submitted to Parliament’s scrutiny when it reconvened in 1971. But the court found that the proclamation of emergency had in fact been laid and, therefore, the legal issue was adroitly evaded. See also IGP v Lee Kim Hoong [1979] 2 MLJ 291 and PP v Ooi Kee Saik [1971] 2 MLJ 108. Within what time after Parliament reconvenes must a Proclamation be laid before both Houses? No time limit is prescribed by the Constitution and one has to presume that the judicial test will be “as soon as is reasonably practicable”. 94
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Under Article 150(3) a proclamation of emergency laid before both Houses shall cease to have effect if resolutions are passed by both Houses annulling such proclamation. But there is nothing to prevent the Yang di-Pertuan Agong from issuing a new proclamation, thereby causing Parliament’s resolution to lose its sting. Parliamentary control over an Ordinance : Just as with the Proclamation, an Ordinance by the Yang di- Pertuan Agong under Article 150(2B) must also be laid before both Houses and the Houses may, by resolution, annul it. But what if there is failure to lay an Ordinance before Parliament? In IGP v Lee Kim Hoong [1979] 2 MLJ 291 the applicant was detained under the Emergency (Public Order and Prevention of Crime) Ordinance 1969. He argued that the Ordinance, not having been laid before Parliament, did not have the force of law. At the High Court Justice Harun Hashim held that the laying requirement is mandatory and the effect of non-compliance is that the Ordinance ceases to have effect after Parliament convenes. At the Federal Court, however, new evidence was adduced that the Ordinance had, in fact, been presented to both Houses and the validity of the Ordinance was affirmed. Judicial control over a Proclamation: Is the proclamation of emergency reviewable by the courts? There was much difference of judicial opinion prior to 1981 100 . However, with a constitutional amendment that year and the insertion of Article 150(8), judicial review of an emergency proclamation is now constitutionally ousted. However in a country with a supreme Constitution, questions of unconstitutionality can never be removed from judicial purview. It is part of the judicial tradition in rule of law states to interpret ouster clauses restrictively and to hold that if a decision or action is declared by law to be “final and conclusive”, it is non-reviewable only if it is within the law. The word ‘decision’ refers to a valid decision. An invalid decision is a nullity 101 . What, for example, if the authenticity of a Proclamation is in doubt and there are questions about whether His Majesty did really issue it? 102 What if the proclamation is not duly gazetted? What if His Majesty, in disregard of Article 40(1) acts on his own initiative or in disregard or prime ministerial advice to issue the Proclamation? Are the courts prevented from examining the constitutional issues? There are also issues about whether a Proclamation has been revoked, annulled or ceased to operate. For example, based on the
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