The Book of Prof Shad.docx

89 proclamation in order to delay parliamentary

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proclamation. In order to delay parliamentary scrutiny, the Yang di-Pertuan Agong can prorogue or dissolve Parliament under Article 55(2) to enable the government to rule the country by executive fiat. For all practical purposes a proclamation of emergency by the Yang di-Pertuan Agong is not subject to adequate control by Parliament. The control became even weaker after the deletion by Act A514 (1980) of the previous Article 150(2) that had admirably provided that if Parliament is not in session when emergency is declared, the two Houses shall be summoned to session as soon as may be. Effect of emergency: Once a proclamation of emergency is gazetted, the floodgates are lifted and legislative and executive powers of the federal government gush forth in exuberance. The executive acquires plenary law-making powers. Parliament’s legislative powers broaden. The federal government acquires power to give directions to the states irrespective of the federal-state division of powers. Yang di-Pertuan Agong’s power to legislate: If the two Houses of Parliament are not sitting concurrently when emergency is declared, the Yang di-Pertuan Agong may act under Article 150(2B) to promulgate Ordinances having the force of law. An emergency ordinance is an extra-parliamentary measure and requires no procedures and no votes in Parliament. It represents the only instance under the Constitution when the executive acquires primary and parallel legislative functions. After the May 15 th Emergency Proclamation, the Yang di-Pertuan Agong promulgated 92 Ordinances. Prominent examples of emergency Ordinances are Emergency (Public Order and Prevention of Crime) Ordinance 1969 to authorize preventive detention; Emergency (Essential Powers) Ordinance 1969 (Ordinance 1, PU (A) 146/1969) to suspend all federal and state elections; Emergency (Essential Powers) Ordinance No. 2, 1969 delegating executive authority to a Director of Operations. The power of the Yang di-Pertuan Agong to promulgate Ordinances in this period is as wide as that of Parliament: Article 150 (2C); Johnson Tan Han Seng v PP [1977] 2 MLJ 66; PP v Ooi Kee Saik [1971] 2 MLJ 108. In Kam Teck v Timbalan Menteri Dalam Negeri [2003] 1 MLJ 321, it was held that Section 3(1) of the Emergency (Public Order & Prevention of Crime) Ordinance 1969 cannot be questioned because of Article 150(2) and (6) despite its contradiction with Article 5(3). Before 1960, an Ordinance had a shelf life of 15 days beginning with the date on which both Houses are first sitting unless it was approved by a resolution of both Houses. This commendable provision was repealed by the Constitution (Amendment) Act 1960 (No 10/60). Now an Emergency Ordinance has no fixed time duration. It can last till it is (i) revoked by the King or (ii) annulled by Parliament under Article 150(3) or (iii) till it lapses after six months on the cessation of emergency under Article 150(7). Under Article 150(3), relating to annulment by Parliament, the resolution of one House is not sufficient: PP v Dato’ Seri Anwar Ibrahim (No. 2) [1999] 2 MLJ 249.
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