The Book of Prof Shad.docx

Judicial review of an emergency ordinance is likewise

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Judicial review of an Emergency Ordinance is likewise barred. But what if the Ordinance violates Articles 150(6A) or 151? The law relating to judicial review of an Emergency Act is the same as relating to an Emergency Ordinance: 150(2C). Federal Structure Cannot be affected. Parliament may trespass into the State List: Article 150(5), e.g. Sarawak Constitution (Amendment) Act 1966. The federal government may give executive instructions to the States: 150(4). Effect of Repeal Repeal of law does not affect the validity of anything done under the previous law while the law was in force: Article 149(2). But action under the repealed law must be discontinued. Similar position: Articles 150(3), 150(7). 99
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Must subversion and emergency actually exist? Laws may be passed preventively. Threat is sufficient to employ Article 150 powers. Procedures Passing a law under Article 149 requires a simple majority. No special majorities or consent of Conference of Rulers is required. Consultation with states under Article 79 for topics in the concurrent list does not apply. Similar position. Amendment of Constitution An Article 149 law cannot amend the Constitution but may suspend the provisions of Articles 5, 9, 10 and 13. An Article 150 law cannot amend the Constitution but may suspend all constitutional provisions except provisions mentioned in Articles 150(6A) and 151. 10. COMPARISON BETWEEN THE INTERNAL SECURITY ACT & THE SECURITY OFFENCES (SPECIAL MEASURES) ACT 2012 INTRODUCTION The SECURITY OFFENCES (SPECIAL MEASURES) ACT 2012 (SOSMA ) repealed the much reviled Internal Security Act (ISA). Its significance will take time to comprehend. No one can deny that the repeal of the 52-year old ISA was a historic, defining, watershed moment in Malaysian legal history. It marked a significant break with an undemocratic past and with a law that was seen as evil by most lawyers and as a necessary evil by most ruling politicians and members of the security establishment. In the broader context of transformation, the repeal of the ISA was part of Dato’ Sri Najib’s reformative process of 2012. We saw the lifting of the 48-year old emergency, the repeal of the Restrictive Residence Enactment and the Banishment Act, the amendment of the Printing Presses & Publication Act (PPPA), Akta University & Kolej Universiti (AUKU) and the Police Act. There was also the enactment of the Peaceful Assemblies Act and establishment of the Parliamentary Committee on Electoral Reform. We thought that we were probably witnessing the dawn of a new, kinder, and less authoritarian era. Impact of SOSMA : The repeal of the ISA strengthened the rule of law and constitutionalism in the country. It affirmed the validity of the principle that absolute discretion (as in the ISA) has no place in a democracy. Due to SOSMA the role of the judiciary was strengthened as the new law “judicialised” the process of dealing with suspects.
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