The Book of Prof Shad.docx

Definition of emergency under article 1501 the term

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Definition of emergency: Under Article 150(1) the term ‘emergency’ refers to threats to the security, economic life or public order of the federation or any part thereof. There need not be actual violence or breach of peace; threat or imminent danger are enough. A proclamation of emergency may be issued even before the actual occurrence of the threat. More than one Proclamation may be issued: Article 150(2A). Emergency may be declared nationally or only in one region e.g. in Sarawak in 1966 and in Kelantan in 1977. The Privy Council broadened the conceptual perimeters of emergency by declaring in Stephen Kalong Ningkan v Government [1968] 2 MLJ 238 that ‘emergency’ is not confined to the unlawful use or threat of force. It includes wars, famines, earthquakes, floods, epidemics and collapse of civil government. Who may declare emergency? Article 150 states that “If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect”. The language of Article 150(1) seems to imply that the proclamation of an emergency is a discretionary power of the Yang di-Pertuan Agong under Article 40(2). Article 40(2) states that the Yang di-Pertuan Agong may act in his discretion in the performance of three enumerated functions plus “in any other case mentioned in this Constitution”. The subjectively worded powers of His Majesty under Article 90 Proclamation of 29 July 1960 (LN 185/60) 91 Refer to the Emergency Regulations Ordinance 1948 (No. 10); Emergency Regulations 1948 (GN 1953/48) and The Emergency (Detained Persons) Regulations 1948 (GN 2032/48) 87
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150(1) appear to fall nicely within the category of “any other case mentioned in this Constitution”. In 1983, the then Prime Minister, Dato’ Seri Dr. Mahathir appeared apprehensive that this view may prevail in the Istana Negara which was soon to be inhabited by the strong-willed Sultan of Johor. As a preemptive measure, the premier pushed through Parliament the Constitution (Amendment) Act 1983 (Act A566) which among other things, amended Article 150(1) to read: “If the Prime Minister is satisfied that a grave emergency exists … he shall advise the Yang di-Pertuan Agong accordingly and the Yang di- Pertuan Agong shall then issue a Proclamation … “. Act A566 elicited strong opposition from the Conference of Rulers. As a compromise measure, the Act was passed on 16 December 1983 but was immediately repealed by Act A584 of 20 January 1984. Because of the story behind Act A566, the seeds of doubt were firmly planted that in times of emergency the Yang di-Pertuan Agong may act on his own without the reference to the Cabinet. The case of Public Prosecutor v Mohd Amin Mohd Razali [2000] 4 MLJ 679 lends further credence to this view. According to the High Court, if Parliament is sitting and the Cabinet is in existence, the Yang di-Pertuan Agong exercises his powers on advice. But if during a
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