The Book of Prof Shad.docx

Before 1981 the yang di pertuan agongs power to enact

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Before 1981, the Yang di-Pertuan Agong’s power to enact plenary legislation came alive if two conditions were met. First, there was a Proclamation of Emergency in operation. Second, Parliament (or either House of Parliament) was not in session. As a result of the defeat in Teh Cheng Poh v PP [1979] 1 MLJ 50, the Constitution was amended to permit the Monarch to promulgate emergency Ordinances “except when both Houses of Parliament are sitting concurrently” [Article 150(2B)]. It is well known that the two 90
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Houses of Parliament rarely sit concurrently. It is also a fact that Malaysia has been under a continuous state of emergency since 1964. This means that for all practical purposes there are two parallel law making authorities during an emergency – Parliament under Article 150(5) and (6) and the Yang di- Pertuan Agong under Article 150(2B). During an emergency the legal system operates as a diarchy and not as one built on separation of powers. Enhancement of Parliament’s legislative powers: During an emergency, the legislative authority of Parliament becomes greatly widened due to conferment of very wide powers under Articles 150 clauses (5) and (6). By virtue of Article 150(5), Parliament may, notwithstanding anything in this Constitution make laws with respect to any matter, if it appears to Parliament that the law is required by reason of the emergency. A prominent emergency law is the Emergency (Federal Constitution and Constitution of Sarawak) Act 1966 which amended the Constitution of Sarawak. Another is the Emergency (Essential Powers) Act 1979 which was enacted to nullify the effect of Teh Cheng Poh [1979] 1 MLJ 50 and to validate Essential Security Cases Regulations 1975. The validity of the Act of 1979 was upheld in Phang Chin Hock v PP [1980] 1 MLJ 70. In the enactment of emergency legislation, constitutional provisions requiring consultation with the states or the consent of any authority outside of Parliament do not apply 93 . The consent of the Conference of Rulers and the Governors of Sabah and Sarawak is not needed. Emergency legislation can be enacted by a simple majority of those present and voting. No special majorities are required. Judicial review on constitutional grounds becomes difficult if not impossible because of Article 150(6), which states that no provision of an emergency law shall be invalid on the ground of inconsistency with any provision of the Constitution. Article 150(8) bars judicial review of emergency legislation. Parliament or the Yang di-Pertuan Agong can enact legislation to contravene almost the entire Constitution including the chapter on fundamental rights. The Emergency (Public Order and Prevention of Crime) Ordinance 1969, the Emergency (Essential Powers) Act 1979 and the Emergency (Essential Powers) Ordinance No. 45 of 1970 are examples of such legislation. The last mentioned law restricted freedom of speech by prohibiting the questioning of “sensitive issues” of Malaysian society.
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