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The existing safeguards in Article 150 to the exercise of emergency powers

Article 150 of the Federal Constitution gives extraordinary powers to the Executive to act
when a state of emergency is declared. Any Act enacted under Article 150 need not be
consistent with all fundamental liberties except if it is related to the freedom of religion
(Article 150(6)(a)) and continues in force indefinitely until Parliament otherwise determines,
whether or not the circumstances giving rise to the emergency have terminated.
<refer scan document>
As the consequence of this 1960 amendment,with regard to the actual use of emergency
powers in Malaysia, So far there are 4 Proclamations of Emergency. The 4 Proclamations of
Emergency are in respect of the Indonesian Confrontation (1964), the political crisis in
Sarawak (1966), the May 13 race riots (1969) and the political crisis in Kelantan (1977).
<also refer to scan document>
All four Emergencies have now been revoked: the 1964 nationwide emergency was in effect
revoked by the Privy Council when it held that the 1969 nationwide emergency proclamation
had by implication revoked the 1964 emergency (see Teh Cheng Poh v P.P.) and the other
three were revoked under Art. 150(3) of the Constitution by resolutions of the Dewan Rakyat
and the Dewan Negara, in 2011. the move to annul the emergency proclamations was made
because the conditions, which threatened security and public order, then no longer existed.
in accordance to Clause (7) under Article 150 of the Federal Constitution, the emergency
proclamation would still be in effect for a period of six months from the date they are lifted.
The lifting of the proclamations will also prevent the government from enacting or passing
emergency laws under Article 150.
In the Constitution (Amendment) Act 1981, a new Clause (8) was inserted to Article 150,
which provides that the courts have no jurisdiction to entertain any application to challenge
any state of emergency proclaimed by His Majesty and any laws made there under thus all
questions concerning emergency powers would be left to the absolute discretion of the
Executive.

150(2B) the cheng poh v pp once parliament has sat, the executive power to make

laws laps.
150(6A)emergency law does not encroach into the areas in this article. Is this wide

enough?? Other tha fundamental liberties


150(3) annulling resolution look at the composition of dewan rakyat, senate..

Effect of laws made under proclamation of emergencyany ordinance will still have

effect 6 months (make sure everything is in order)


Parliaments power are indefectivecomposition of parliament
No obligation that parliament must sit
May riot22 months without parliament sitting
There is no judicial control clause(8) Stephen kalong ningkans case
Judiciary cannot question validity

Additional safeguards
since article 150 conferred a broad and extensive powers to the executive, I think the most
important, additional safeguard to this article is to curtail this power so as to avoid abuse of
power fundamental liberties. Clause (1) and (2) are both very wide provisions.

Judiciary should be allowed to review


After 6 months, parliament sits.
150(2D), 6, 8

Lack of check on the duration of emergency


The initial provision, before the 1960 amendment provided that a Proclamation would lapse if
not approved by both Houses of Parliament within two months of its being made. The effect
of the amendment was to invert the process of parliamentary check on an emergency.
Whereas previously there was a positive obligation on the Executive to obtain Parliamentary
approval within a limited time, there is now no restriction as to when approval is to be
obtained. If a Proclamation is made when Parliament is not-in session, it is open to the
Executive to wait till Parliament ordinarily meets to lay the Proclamation before it or to skip
the first session altogether because there is no injunction that the, laying of the Proclamation
should be in the -session soon after the Proclamation was made.
This factor coupled with the insertion of Clause (8) in the 1981 amendments to oust judicial
review of the continuance of a state of emergency makes the position clear, from the
Executive's viewpoint, that the duration of a state of emergency is entirely a matter of its
discretion. Judicial opinion has confirmed this. In Johnson Tan's case, the Court took the,
literalist approach stating that a proclamation may be revoked only , by the procedure
provided for under the, Constitution, namely, by a resolution of Parliament, and rejected the
argument that, it could lapse by effluxion of time or changed circumstances. In Ooi KeeSaik's case the Court held that the summoning of Parliament to discuss the continuance of
an emergency is a matter solely for the judgment of His Majesty (meaning the Cabinet) and
the matter is above judicial review.

The obvious safeguard would be to revert to the pre-1960 position of a positive affirmationby Parliament within a stipulated time of the necessity, for an emergency. This conforms with
the United Kingdom and New Zealand models, the latter providing for emergencies of fixed
duration. These statutes mandate the Government to summon Parliament to ratify the
emergency if Par. liament was not sitting when the emergency was declared. The United
Kingdom provision requires that Parliament be summoned within five days whereas the New
Zealand statute provides for seven days. The New Zealand provision was tightened,
ironically at the same time as the Malaysian provision was loosened, to delete the
requirement previously existing of merely to communicate the Proclamation to Parliament at
the next ensuing session. It may be noticed the Malaysian law does not even carry the
requirement of laying the Proclamation before Parliament-at the next ensuing session. It is
left to the discretion of the Executive to bring the proclamation before Parliament at any
session of their choosing.

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