Tuesday, January 19, 2021

Emergency Proclamation and Ordinance: Steps Too Far says former Bar Presidents... and concerns by current President?

Prevention and Control of Infectious Diseases Act 1988 had been used in Malaysia to put all the required action to address the pandemic since March 2020 - It had the needed power and capacity to restrict movement, quarantine, etc ....so, why now the Proclamation of Emergency? 

Worse still the Emergency (Essential Powers) Ordinance 2021 seems to be 'taking over' or overlapping regulations that can be put in place by already existing laws.

Remember the Emergency (Essential Powers) Ordinance 2021 is not a law passed by Parliament - but by the King, who may have done as requested by the Prime Minister...And it surely came out very fast... if Emergency was the direction the government was moving, should it not have been discussed in Parliament for after all daily new case went over 1,000 in October...

The King also seem to have ousted State powers and sovereignty - the Ordinance have suspended the operations of State Legislative Assemblies, and the question that arises was whether the Sultans and the Rulers of the States consulted? Was the State governments consulted? 

There were some states where the Covid infections were high - but for some others it was low - was it reasonable to also suspend the operation of State Legislatures? 

Many questions arises... and many have opinions. Below are the statements by 10 former Presidents of the Malaysian Bar, and also a statement by the current Bar President..

READ it...

The Proclamation and Ordinance: Steps Too Far — by ten former Malaysian Bar Presidents 17 Jan 2021 11:06 pm

© Malay Mail (used with permission)

JANUARY 17 — Article 150(1) of the Federal Constitution provides for a Proclamation of Emergency only in situations where a grave emergency exists, namely where the security, economic life, or public order in the country is threatened.

It must never be sought lightly because it is anti-democratic and effectively suspends the Rule of Law. Such a Proclamation throws the country into a legal abyss where all power resides in the Executive.

Hence the heavy strictures for its use as prescribed in our Federal Constitution, which is founded on a framework of democracy, separation of powers and the rule of law.

Thus, it is incumbent on any responsible government to avoid seeking such a Proclamation save in the most extreme of circumstances. Do these circumstances exist here?

The Proclamation of 11th January 2021 expressly relies on the Covid-19 pandemic as the threat to “security, economic life or public order” in the country.

Failing any other ground, this is hardly a legitimate reason for an emergency, particularly in light of the reach of the Prevention and Control of Infectious Diseases Act 1988, the movement control orders made to contain the disease and the fact that most businesses continue to function, albeit under very challenging conditions.

More alarming is the Emergency (Essential Powers) Ordinance 2021 promulgated under the Proclamation.

It gives unrestricted power over person and property. Amongst other things, it allows for the forcible taking of possession of land/building/property by the government with a RM 5 million fine/10 year jail sentence for a refusal to comply. The assessment of compensation is not by the courts and cannot be challenged in court. It also allows for the army to be given powers of search, detention and arrest equivalent to that exercised by the civilian police.

The most egregious provisions is the suspension of the sitting of Parliament and the legislative assemblies of the States. There appears to be no justifiable reason to do so. All it does is that it insulates the executive from accountability.

The suspension of the sitting of Parliament and the State Assemblies is unconstitutional. A Proclamation and any Ordinances promulgated pursuant to the Proclamation must be tabled in Parliament under Article 150(3) of the Federal Constitution. This is for the purposes of Parliament exercising its constitutional power of scrutiny of the government. Both Houses may pass resolutions annulling the Proclamation and the Ordinances.

There is therefore a guarantee that Parliament will continue to function during the Emergency, as it did under the previous Emergencies. The Ordinance deprives Parliament of this critical constitutional power of check and balance. It denies our democracy.

It is astonishing that a pillar of our Constitution is suspended, whilst other businesses are allowed to operate.

The Ordinance further seeks to isolate and immunize the government from accountability and judicial scrutiny of its actions or omissions.

The “good faith” exception does not, in reality, afford protection against overzealous exercise of power or an abuse of it. It is axiomatic that no abuse of power by the Executive can ever be insulated from scrutiny by the courts.

It is regrettable that the elements of reasonableness and proportionality are absent in this matter.

Other measures mentioned in the Ordinance which are directly related to the pandemic are achievable through other means.

The Ordinance is therefore a window into the true reason for the Proclamation.

In the final analysis, it is very troubling that the Government has set a dangerous precedent for the use of Proclamations when the requisite conditions are not met under the Constitution.

This is unacceptable in a country that is built on the bedrock of democratic principles and the Rule of Law.

It is therefore imperative that both the Proclamation of Emergency and the Ordinance be laid before Parliament, as soon as possible.

*This statement is submitted by ten former presidents of the Malaysian Bar:

Dato’ Param Cumaraswamy
Zainur Zakaria
Dato’ Dr. Cyrus V. Das
Datuk Mah Weng Kwai
Datuk Kuthubul Zaman
Datuk Yeo Yang Poh
Datuk Ambiga Sreenevasan
Ragunath Kesavan
Christopher Leong
Steven Thiru

**This is the personal opinion of the writers and does not necessarily represent the views of Malay Mail. - From Malaysian Bar Website

Press Comment | Concerns Arising Out of the Emergency (Essential Powers) Ordinance 2021 15 Jan 2021 8:27 pm
The Malaysian Bar respects the constitutional powers of His Majesty, the Yang di-Pertuan Agong in exercising his prerogative to promulgate the Emergency (Essential Powers) Ordinance 2021 (“Ordinance”), which carries the rights of an act of Parliament.  Nevertheless, we are concerned that the Ordinance which was gazetted on 14 January 2021, that strengthens the functions of the Government, has some significant issues.
Legal and fundamental rights cannot be abrogated during an Emergency.  This includes an individual’s right to receive fair compensation for land and building acquisition.  This is even more so when the breach of sections 3 and 4 of the Ordinance carries severe penalties.
Pursuant to section 10 of the Ordinance, “no action, suit, prosecution or any other proceeding shall lie or be brought, instituted or maintained in any court against the Government … appointed under subsection 6(1)” of the Ordinance.  While this is only confined to a class of persons as defined within section 6(1), this still grants the Government and its agents immunity in situations of negligence and for medical negligence.  The Malaysian Bar is of the view that a blanket immunity should not be extended as someone must be held accountable for mishaps that occur under the orders of the Government, be it in good faith or not.  An ouster clause does not necessarily shield the Government from being sued for any breach of fundamental human rights.  The wide-ranging powers under the Ordinance sends a chilling effect to ordinary citizens, since all the powers are concentrated in the Executive branch.  
The Malaysian Bar is also apprehensive of the powers granted to the armed forces during the Emergency period.  As provided under section 7(1) of the Ordinance, as long as the Emergency is in force, the armed forces will have the authority to arrest and detain, and possess the right of a police officer under the Criminal Procedure Code (“CPC”), as well as the authority vested in them under the Armed Forces Act 1972.  The Malaysian Bar takes the view that police officers are trained in the manner of handling civilians and day-to-day disputes, whereas the armed forces do not have the requisite experience.  We are concerned about the excessive use of powers by the armed forces when carrying out their duties.  The Malaysian Bar hopes that the fundamental rights of individuals will not be compromised during the Emergency and in the course of implementing the Ordinance. 
The Malaysian Bar feels that Parliament should be allowed to convene and be in session unless it is dissolved.  This will provide checks and balances to the function and role of the Government even during the period of this Emergency. 
The Malaysian Bar hopes that fundamental rights will not be compromised even during the Emergency and in the course of implementing the Ordinance.  As propounded in the Federal Court decisions of Semenyih Jaya and Alma Nudo, the protection of the basic structure doctrine of the Federal Constitution and the fundamental rights of citizens should be safeguarded in any given situation.  The rule of law is not some kind of receding mirage, but a fountain from which the nation draws its sustenance.  Emergency or not, it forms the basis of a democratic system. 
In light of the above, the Malaysian Bar calls upon the Government to exercise its Executive powers to only such an extent that is necessary to meet the particular needs of handling the COVID-19 pandemic, while upholding the rule of law and democratic rights of its citizens. 
Salim Bashir
Malaysian Bar
15 January 2021

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