The basic structure of Malaysia has failed when the separation of powers component was not observed – SLS

By Roger Chin


The Sabah Law Society (“SLS”) has been dismayed to note spectacular letdowns in 2 key respects in recent days.

The Functions of the Yang di-Pertuan Agong (“YDPA”)
The government has failed to give due respect to the position and functions of the YDPA.  Article 32(1) of the Federal Constitution states that the YDPA is the Supreme Head of the Federation.

The actions of those in power have compelled the YDPA to issue a statement on 29.07.2021 indicating His Majesty’s disappointment with the ongoings in Parliament.  The conduct of parties in Parliament forced His Majesty to cite provisions of the Federal Constitution.  The SLS is entirely in agreement with the statement by the YDPA, namely that the provisions of Article 150(2B) read together with Article 150(3) of the Federal Constitution provide that the power to promulgate and revoke emergency ordinances (“EO”) vest in His Majesty.

The above statements stemmed from the reported statements from the de facto law minister in Parliament on 26.07.2021 that, “The government also decided, according to Article 150(3) of the Federal Constitution to revoke the Emergency Ordinances (EO) that was made during the Emergency proclamation, and because it was revoked the issue of annulments (of the Ordinances) is no more relevant” and “Also, all the Emergency Ordinances, a total of six that were made, the federal government has decided to revoke all of them effective July 21, 2021, not today, but on July 21”.

What was said was unequivocal and there can be no possibility of miscommunication of such a simple and clear statement.

The statement was entirely misguided and ill-advised, in view of the provisions of the Federal Constitution referred to by the YDPA in His Majesty’s abovestated press statement.  The SLS was dismayed to see such blatant disregard for the position and functions of the YDPA.  The position taken by the de facto law minister have had the outrageous effect of the EO being revoked from 21.07.2021 onwards, without the knowledge of any person (not even the YDPA) outside of Cabinet.  In fact, it was only on 26.07.2021 that the de facto law minister deigned to inform Parliament – and thereby the YDPA and the public – as to the state of the law from 21.07.2021 onwards.

The Functions of Parliament
The government has failed to give due respect to the functions of Parliament.  Article 44 of the Federal Constitution states that the legislative authority of the Federation shall be vested in Parliament.

The statement issued by the YDPA on 29.07.2021 also stated that there had been an agreement to lay the emergency ordinances before Parliament to debate and decide whether or not to annul the same.  This was entirely in line with Article 150(3) of the Federal Constitution.  However, this was obviously not done.

Simply put, even if what was said in the Prime Minister’s Office (“PMO”) statement dated 29.07.2021 is correct, merely informing the YDPA of the Cabinet’s decision to revoke the EO as of 21.07.2021 does not actually make the EO revoked as at 21.07.2021. Even though the YDPA may need to heed the advice of the Cabinet, in line with Article 40(1) of the Federal Constitution which states the YDPA shall act on the advice of the executive but is entitled to request for additional information, the Cabinet still cannot unilaterally revoke the ordinance without first getting the YDPA’s consent and thereafter gazette notification, which are all important parts of legal procedure. This breakdown in the rule of law is what disturbs the people of Malaysia.
As it is remains a fact that the EO are not actually revoked notwithstanding the YDPA may have been informed of the cabinet’s decision, it is of supreme importance that the EO be tabled and debated before Parliament as the question of whether the EO are revoked or annulled by Parliament is crucial to ensure that the EO will not remain in force until 1 February next year, because according to Article 150(7) of the Federal Constitution, any ordinances promulgated during the Emergency period may still be in effect for a period of six months from the date on which the Emergency period is lifted.
Parliament last sat in December 2020.  The Parliament sitting in July 2021 was long awaited and the country was in dire need of direction as to measures to be taken to deal and cope with the present pandemic.  This was not to be, as the House of Representatives was unsurprisingly in an uproar over – among other things – the above statement of the de facto law minister, and this was compounded when the statement of the YDPA came to light and the PMO’s subsequent response.  The events thereafter resembled both a comedy and a tragedy.

It was plain to see that persons in power were desperate not to allow the Parliament sitting to continue.  The use of the Ministry of Health – arguably the most important ministry in present times – as a reason to adjourn was entirely transparent in its intention and has sullied the reputation of the MOH – it appeared that day that the real power in Malaysia was seated in the house of the Prime Minister and not the Houses of Parliament.

What has made matters even worse is the fact that persons responsible for causing the debacle subsequently issued statements repeating their supposed dedication to the rule of law and the supremacy of the YDPA.  The statements are unbelievable in light of their actual conduct, and it appears that the only respect being given to the provisions of the Federal Constitution and the YDPA is merely lip service.

This failure has further eroded public confidence in Malaysian public institutions.  The nation is already in crisis.  Many people in Malaysia are struggling to put food on the table, and the SLS is saddened to see the role of Parliament being almost entirely disregarded at this critical juncture, for selfish reasons.  The people are looking to their leaders for guidance and assistance, and the SLS is disheartened to see the disgraceful conduct of those in power.

The SLS calls on all members of parliament to remember that they were elected to serve Malaysia and Malaysians.  If any ministers or members of parliament find themselves unable to do so, they should step down immediately.

Roger Chin
Sabah Law Society

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