The Book of Prof Shad.docx

94 article 3 762 1453 schedule 9 list ii paragraph 1

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94 Article 3, 34(1), 38, 42(10), 76(2), 145(3), Schedule 9, List II, Paragraph 1 95 Articles 76(2) & 90(1). 96 Article 76(2) 97 Articles 3(1), 8, 11, 12 & 161E (2)(d) 98 Articles 14-31 & 161E (2)(a) 99 Articles 152, 161 & 161E (2)(d) 93
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It is submitted that emergency legislation is of a temporary nature. It can suspend but cannot cause permanent alterations to the Constitution due to the explicit provision in Article 150(7) that on the cessation of an emergency proclamation, all emergency legislation must come to an end after a grace period of six months. For amendments to the Constitution, the special procedures prescribed in Articles 159 and 161E must be followed and no easy recourse to Article 150 is possible. Procedural requirements: Legislation under Article 150(2B) and 150(5) must contain the recital prescribed by Article 150(6) – ‘the law appears to Parliament to be required by reason of the emergency’. If such a recital is absent several alternative approaches are possible. First, in the absence of a recital the legislation may be deemed to be part of the ordinary legislative powers of Parliament under Articles 73-79 and be subject to judicial review like any other law. Second, the recital may be regarded as a mandatory procedural requirement violation of which results in nullity. Third, the recital may be regarded as a non-binding procedural requirement disregard of which does not affect validity. In M. Madhavan Nair [1975] 2 MLJ 286 where an Ordinance was challenged because it did not bear the royal seal and the customary recitation, it was held that the Constitution does not require a magic incantation. The court has to see whether the substance of the requirement is there. Parliamentary control over the Proclamation: There is a general misconception that whenever emergency is declared, Parliament is automatically prorogued or dissolved. The law and political reality is quite the opposite. Article 150(2), prior to its amendment, used to require that if the Yang di-Pertuan Agong proclaims an emergency when Parliament is not sitting, he shall summon Parliament as soon as may be practicable. This requirement has now been deleted. Nevertheless, one must note that when the Sarawak emergency was declared, Parliament was summoned to meet three days later. When the Kelantan emergency was declared in 1977, Parliament was sitting. In 1969, when emergency was declared, Parliament had been dissolved for a General Election and was reconvened in 1971. Since 1964, the country has been under a constant state of emergency. Yet Parliament has continued to meet. The constitutional scheme is that whether it is normal times or emergency times, Parliament must continue to perform its constitutional functions. The Constitution subjects an emergency proclamation to parliamentary control. Article 150(3) requires that a proclamation of emergency must be laid before both Houses of Parliament. Failure to lay could be treated as a fatal defect causing the emergency proclamation to lapse. Alternatively, laying may be treated as a directory requirement violation of which may not result in nullity. In Lim Woon Chong Ng Foo Nam v PP
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