The Book of Prof Shad.docx

For example based on the teh cheng poh decision did

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revoked, annulled or ceased to operate. For example, based on the Teh Cheng Poh decision, did the 1969 emergency impliedly repeal the 1964 emergency? The Emergency Powers (Kelantan) Act 1977 (Act 192) was repealed by an Order by the King (PU(A) 46/78). Does the repeal of Act 192 affect the continuation of the Kelantan Emergency Proclamation of 8 November 1977 (PU(A) 358/77)? 100 Refer to Stephen Kalong Ningkan v Government [1968] 2 MLJ 238; Lim Woon Chong v PP [1979] 2 MLJ 264; Phang Chin Hock v PP [1980] 1 MLJ 70. 101 Anisminic v FCC [1969] 2 AC 147 102 In Madhavan Nair v Government [1975] 2 MLJ 286 it was argued that Ordinance No. 1 of 1969 as printed in the Gazette lacked the signature and authentication from the King. An affidavit from the PM was admitted that the King did approve and sign the Ordinance. In Teh Cheng Poh [1978] 1 MLJ 30, the same issue of lack of authentication was unsuccessfully raised. 95
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Judicial review of Emergency Ordinances & Acts: In the context of an emergency law, it is crystal clear that Article 150(6A) imposes fetters on emergency powers. Six sensitive issues cannot be trifled with under emergency powers. If Parliament or the King frame unconstitutional legislation relating to these six issues, judicial review is likely. If an Ordinance is promulgated while the two Houses are in session concurrently, courts may interfere. If a preventive detention law violates the requirements of Article 151, judicial review may lie. Further, there are some judicial presumptions that an emergency law does not automatically intend to violate the Constitution. It has been held that Article 150(2B) and 150(5) authorise inconsistencies with the Constitution that are express, not implied: Lee Mau Seng v Minister [1971] 2 MLJ 137. This means that during an emergency the Constitution is not automatically suspended. Parliament is not required to be sent off on prorogation. Fundamental rights are not automatically rendered ineffective though Parliament acquires the power to abridge most of them. The courts of the land remain in operation and are not replaced by special courts. Provisions of the Constitution can be eclipsed but not repealed and will revive six months after the emergency ceases. Habeas Corpus is not suspended. All rights and privileges and all institutions and procedures remain in effect unless an emergency law explicitly says to the contrary. Despite a continuing state of emergency since 1964, there is a presumption in favour of ordinary law. Judicial review of subsidiary legislation: Regulations authorized by an Ordinance or an Act of Parliament under Article 150 can be declared invalid if they are ultra vires the enabling law or inconsistent with Articles 150(2B), 150 (6A) or 151. In Teh Cheng Poh v PP [1979] 1 MLJ 50, the Yang di-Pertuan Agong had, under Article 150, validly promulgated an Ordinance in 1969. Under the Ordinance he delegated power to himself to frame Security Regulations. In 1975, long after Parliament had come back to session on 20 February 1971, the Yang di-Pertuan Agong (in his capacity as a delegate) framed the Essential Security Cases Regulations 1975. The Privy Council held that once Parliament comes back to session, all executive law-making must cease, no matter by what name it is called. The Regulations were an Ordinance in
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