The Book of Prof Shad.docx

The constitutional distinction between subversion and

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crimes prejudicial to the public can be undertaken as and when the need arises. The constitutional distinction between subversion and emergency and the independence of the former from the latter means that laws like the Internal Security Act which are derived from Article 149 can continue to exist even if the state of emergency comes to an end. Article 149 empowers Parliament, not the executive: Article 149 augments the powers of Parliament to enact special legislation to combat subversion. But it does not endow the executive with similar legislative competence. In contrast, Article 150 authorises Parliament as well as the Yang di-Pertuan 85 See Ong Hock Thye, CJ (Malaya) in Karam Singh v Menteri [1969] 2 MLJ 129 at 141 79
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Agong (if the two Houses are not in session concurrently) to frame crisis laws. In addition to legislative powers, Article 150 allows the federal executive to take all administrative measures it deems fit to combat crises and exigencies. In contrast, the powers under Article 149 relate to legislative, not executive action. Article 149 powers devolve upon Parliament, not upon the Yang di-Pertuan Agong. Duration of Article 149 laws: Before 1960, a law made under Article 149 automatically expired one year after the date of its coming into force. But that provision has now been repealed. The present position is that laws enacted to combat subversion have no time limits and do not cease to operate even if the threat that provided the impetus for the law has ceased. However, there are four ways in which the sands of time can run out on an anti-subversion law. First, by a parliamentary repeal of the anti-subversion law. Second, by a resolution of both Houses annulling the law. Third, the enacting measure may contain a time frame at the end of which the law will automatically lapse. Fourth, the enactment may require periodic parliamentary review and confirmation. Such a clause is found in the Dangerous Drugs (Special Preventive Measures) Act 1985. Only four fundamental rights can be violated: As under Article 150, laws enacted under Article 149 can violate fundamental rights. But the perimeter of legislative power under Article 149 is much narrower. A parliamentary law under Article 149 is permitted to violate only four fundamental rights - those contained in Article 5 (personal liberty), Article 9 (freedom of movement), Article 10 (speech, assembly, association) and Article 13 (property). In contrast, legislative competence under Article 150 is much larger. An emergency law under Article 150 can suspend or violate most provisions of the Constitution including all federal features and all fundamental rights (except freedom of religion). The only fetters are that on six hallowed topics enumerated in Article 150(6A), the easy recourse to emergency legislation cannot be resorted to. The six entrenched topics in Article 150(6A) are: Islam, religion in general, custom of the Malays, customs of the natives of Sabah and Sarawak, language and citizenship. Legislation on these special topics will have to be enacted in the normal way either by an ordinary Act of Parliament or a constitutional amendment. The Act of Parliament will be subject to judicial review on constitutional
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