The Book of Prof Shad.docx

Pre conditions the yang di pertuan agongs power to

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Pre-conditions: The Yang di-Pertuan Agong’s power to promulgate an emergency Ordinance can be exercised only if two conditions under Article 150(2B) are met. First, there must be in operation a proclamation of emergency. Second, the two Houses of Parliament must not be in session concurrently. In practice, however, these requirements do not impose any significant fetter. The emergency proclamations of 1964, 1966, 1969 and 1977 were never expressly revoked. As to the sessions of Parliament, the common practice is for the Dewan Negara to meet only after the Dewan Rakyat has adjourned. This means that during an emergency, even if one House of Parliament is holding meetings, the executive has powers under Article 150 (2B) to seize the initiative in the legislative field. Substantive limits: There are some topics outside the Yang di-Pertuan Agong’s and Parliament’s legislative competence during an emergency. 92
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Article 150(6A): Under Article 150(6A), the power of Parliament and of the Yang di-Pertuan Agong does not extend to matters of Islamic law 94 , custom of the Malays 95 , native law or custom in Sabah and Sarawak 96 , religion 97 , citizenship 98 and language 99 . If legislation is needed on these critical matters, emergency powers cannot be employed. The legislation has to be enacted subject to the extraordinary procedures and special majority requirements of Articles 159 and 161E. Article 151: All emergency legislation, whether by Parliament or the Yang di-Pertuan Agong, has to comply with the requirements of Article 151. This Article deals with safeguards for preventive detainees. A detainee is entitled “as soon as possible” to be informed of the grounds of his detention and the allegations of facts on which the order is made; the right to make representations against the order; the right to have his representations considered by an Advisory Board within three months or such time as permitted by the Yang di-Pertuan Agong. An extension made after the expiry of the period of three months is invalid: Rajoo s/o Ramasamy v IGP [1990] 2 MLJ 87. 150 (2B): It was held in the celebrated Privy Council case of Teh Cheng Poh v PP [1979] 1 MLJ 50 that the power of the Yang di-Pertuan Agong to promulgate Ordinances comes to an end the moment Parliament reconvenes. After Parliament has come back to session, the King cannot continue to make law under Article 150 either by way of an Ordinance or in the disguise of delegated legislation authorised by an executive Ordinance. 150(7): If emergency comes to an end, it is provided in Article 150(7) that any laws made during the emergency will cease to have effect after a grace period of six months beginning with the date on which the proclamation of emergency ceases. Constitutional amendments: An engaging issue under Article 150 is whether emergency legislation, which is enacted by a simple majority, can cause permanent amendments to the Constitution. Some commentators are of the view that the language of Article 150(5) is broad enough to enable Parliament to make any law including an amendment to the Constitution.
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