The Book of Prof Shad.docx

During an emergency the federal features of the

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During an emergency the federal features of the Constitution can be ignored. Parliament (or the Yang di- Pertuan Agong) can encroach on state powers. For example, the Emergency (Essential Powers) Ordinance 1969 (No. 1) suspended all elections to and meetings of state legislative assemblies. The Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 amended the Sarawak Constitution. The Kelantan (Emergency Powers) Act 1977 imposed federal rule over Kelantan. Extension of federal executive powers: While a proclamation is in force, executive authority of the federation extends to any matter within the legislative authority of a State. Under Article 150(4) the federal government can give directions to the states or any of its officers. This means that the constitutional separation between the federal and the state executive can be ignored. 93 Refer to Articles 2(6), 33(5), 38(4), 66(5), 76(2), 76(3), 80(3), 159(5), 161(3) and 161E(2). 91
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Delegation of law making powers: The power to enact emergency laws can be delegated. Whatever Parliament can do, it can authorise a delegate to do on its behalf. This leads to the startling proposition – upheld in Eng Keock Cheng v PP [1966] 1 MLJ 18 - that during an emergency, fundamental rights can be violated even by way of delegated legislation framed under the authority of an emergency law. In Johnson Tan Han Seng v PP [1977] 2 MLJ 66 even a sub-delegation to the Attorney-General which violated a fundamental right was upheld as permissible. In Najar Singh v Government [1976] 1 MLJ 2003, the Privy Council upheld the power of the Director of Operations to frame Police Regulations under the authority of an Ordinance. In Government of Malaysia v Mahan Singh [1975] 2 MLJ 155, the Federal Court upheld that power of the King to delegate all his power to the Director of Operations. In Eng Keock Cheng v PP [1966] 1 MLJ 18 and Osman v PP [1968] 2 MLJ 137, the judiciary approved the delegation of virtually unlimited legislative power from Parliament to the executive. Even derogation from fundamental rights can be authorized. Whatever Parliament can legislate, it can delegate. In sum it can be stated that emergency powers in Article 150 provide the basis for a special legal system that is parallel to and superior than the legal order established under the Constitution. It is a remarkable aspect of the legal landscape that except for the period 30 July 1960 to 2 September 1964, Malaysia has lived under the shadow of one or more emergency proclamations. Whether any legal, political, parliamentary or judicial checks exist to restrain these remarkable powers requires further investigation. LIMITS ON EMERGENCY POWERS So awesome is the breadth of emergency powers under Article 150 that some controls on the exercise of these powers is absolutely necessary for the preservation of rule of law and constitutionalism in the country. The Merdeka Constitution did envisage a number of controls and limits.
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