The Book of Prof Shad.docx

Duration of the proclamation the law before 1960 was

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Duration of the proclamation: The law before 1960 was more satisfactory than today. Article 150(3) required that a Proclamation would cease two months after it was issued unless approved by a resolution of each House. This time limit was removed by the Constitution (Amendment) Act 1960 (No. 10/60). Today the position is that a Proclamation has no fixed duration. Under the Constitution there are only two ways in which a Proclamation of Emergency can come to an end. First, if the Yang di-Pertuan Agong revokes it; second, if the two Houses annul it by resolution. The Privy Council in Teh Cheng Poh v PP [1979] 1 MLJ 50 added a third ground - a later proclamation impliedly repeals a previous proclamation. Teh Cheng Poh can be interpreted in one of two ways. First, that a later, national emergency repeals a former. national emergency and a later state emergency repeals a former emergency in that state. This means that the 1969 national emergency brought the 1964 Proclamation to an end and caused all emergency laws under the 1964 emergency to lapse. The second interpretation of Teh Cheng Poh is that the 1977 Proclamation has impliedly repealed all three prior Proclamations of 1969, 1966 and 1964. In addition, all Emergency Ordinances and all Emergency Acts under the 1964, 1966 and 1969 Proclamations have lapsed under Article 150(7). This view will have startling implications and is unlikely to be accepted by the courts. In fact in the post- Teh Cheng Poh era, the courts have in innumerable cases proceeded as if the 1969 emergency and its derivative legislation are still in operation. Reference may be made to PP v Dato’ Seri Anwar Ibrahim No.2 [1999] 2 MLJ 249; Lim Woon Choong v PP [1979] 2 MLJ 264; Phang Chin Hock v PP [1980] 1 MLJ 70; Kam Teck v Timbalan Menteri Dalam Negeri [2003] 1 MLJ 321. Whatever interpretation one may give to Teh Cheng Poh, its view is now set aside by addition of a Clause 150(2A) to the Constitution which states that more than one proclamation of emergency can exist concurrently. With effect from 15 May 1981, Act A514 permits multiple proclamations. In India courts have held that an emergency can lapse due to efflux of time. In Johnson Tan Han Seng v PP Justice Harun Hashim relied on Indian precedents to hold that the proclamation of 1969 had lapsed due to passage of time. But the Federal Court, in overruling him, held that a proclamation once issued can go on indefinitely even if the facts that led to the declaration of the emergency have ceased 92 . Inadequate parliamentary control over a proclamation: The Constitution in Article 150(3) requires the Yang di-Pertuan Agong to lay the Proclamation of Emergency before both Houses of Parliament. The Houses are given the power to pass resolutions to annul a proclamation. This underlines the constitutional scheme of parliamentary control over the executive even in times of emergency. However, the control is ineffective because the executive can enforce its will on Parliament by issuing a fresh 92 [1977] 2 MLJ 66. See also Mark Koding v PP [1982] 2 MLJ 120; PP v Khong Teng Khen [1976] 2 MLJ 166.
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