Ten former Bar presidents: Perikatan govt’s Emergency legal guidelines

KUALA LUMPUR, Jan 17 — The present federal authorities’s profitable push for a declaration of a nationwide Emergency on Malaysia and the following Ordinance or regulation created below the Emergency with sweeping powers for the federal government with out the mandatory checks and balances is a “harmful precedent”, ten former presidents of the Malaysian Bar mentioned right now.

In a assertion right now, the previous leaders of the authorized skilled physique that represents all attorneys in Peninsular Malaysia voiced their concern over the federal government’s determination to hunt the declaration of an Emergency by way of a Proclamation by the Yang di-Pertuan Agong. They argued that the situations of a “grave emergency” with solely the “most excessive” of circumstances — that might be required for such an Emergency declaration — weren’t current when the Emergency was known as.

“Within the closing evaluation, it is vitally troubling that the federal government has set a harmful precedent for using Proclamations when the requisite situations should not met below the Structure.  “That is unacceptable in a rustic that’s constructed on the bedrock of democratic rules and the Rule of Regulation. It’s subsequently crucial that each the Proclamation of Emergency and the Ordinance be laid earlier than Parliament, as quickly as attainable,” they mentioned.

Amongst different issues, in addition they highlighted the recently-gazetted Emergency Ordinance which had suspended the sitting of Parliament, mentioning that the Federal Structure really requires each a proclamation of Emergency and Ordinances made below an Emergency to be tabled in Parliament to be scrutinised, and that the Parliament did proceed to operate in earlier Emergencies within the nation.

The assertion was signed off by Datuk Param Cumaraswamy, Zainur Zakaria, Datuk Cyrus V. Das, Datuk Mah Weng Kwai, Datuk Kuthubul Zaman, Datuk Yeo Yang Poh, Datuk Ambiga Sreenevasan, Ragunath Kesavan, Christopher Leong and Steven Thiru.

Within the assertion titled “The Proclamation and Ordinance: Steps too far”, the 10 outstanding attorneys famous that the Federal Structure’s Article 150(1) supplies for a Proclamation of Emergency solely in conditions the place a “grave emergency exists”, which is when the “safety, financial life or public order” within the nation is threatened.

The senior attorneys careworn authorities mustn’t ever flippantly search a Proclamation of Emergency because it successfully suspends the rule of regulation and is anti-democratic, because it “throws the nation right into a authorized abyss the place all energy resides within the govt”. Below Malaysia’s parliamentary democracy system with a constitutional monarch, the three branches of presidency are the chief, legislative and judiciary, with separation of powers between the three practised.

Noting the Federal Structure as being based mostly on a framework of democracy, separation of powers and the rule of regulation, the 10 attorneys identified that for this reason there are heavy limits within the Federal Structure imposed on using a Proclamation of Emergency.

“Thus, it’s incumbent on any accountable authorities to keep away from looking for such a Proclamation save in essentially the most excessive of circumstances. Do these circumstances exist right here?” they requested, earlier than happening to reply this by dismissing the necessity to name for an Emergency. They identified that there have been already enough measures to deliver Covid-19 below management with out having to name for an Emergency.

Noting that the current Proclamation of Emergency depends on the Covid-19 pandemic because the menace to Malaysia’s “safety, financial life and public order”, the attorneys mentioned this cause alone is “hardly a authentic cause for an Emergency”, particularly when different current components are thought of, particularly the attain of the Prevention and Management of Infectious Ailments Act 1988, the motion management orders made to include the Covid-19 illness, and the truth that most companies proceed to operate albeit below very difficult situations.

The previous Malaysian Bar presidents mentioned the Emergency (Important Powers) Ordinance 2021 that was launched below the Emergency was even “extra alarming”, as they voiced concern over how this Emergency Ordinance would successfully defend the chief arm of presidency from being scrutinised or held accountable by the 2 different arms of presidency — Parliament and the courts.

They cited as instance how the Ordinance permits the federal government to have unrestricted energy over individual and property, corresponding to permitting the forcible takeover of land, constructing or property, with as much as a RM5 million nice or as much as 10 years’ jail for refusal to conform, whereas the quantity of compensation to be paid just isn’t determined by the courts and is a closing determination that can’t be challenged in court docket. They identified that the Ordinance additionally permits the military to be given powers of search, detention and arrest which might be equal to the powers exercised by the civilian police.

The previous Malaysian Bar presidents singled out the suspension of the sitting of Parliament and all state legislative assemblies all through the Emergency because the “most egregious” or essentially the most obvious provision, arguing that there seems to be “no justifiable cause” for such a provision. “All it does is that it insulates the chief from accountability,” the attorneys mentioned, including that the availability to droop the sitting of Parliament and the state law-making our bodies was “unconstitutional”.

Mentioning that the Federal Structure’s Article 150(3) requires Emergency Proclamations and Emergency Ordinances to be tabled in Parliament, the attorneys mentioned that is to allow Parliament to train its constitutional energy of scrutinising the federal government, highlighting that this constitutional provision additionally states that Parliament might go resolutions to annul the Proclamation and Ordinances.

“There’s subsequently a assure that Parliament will proceed to operate throughout the Emergency, because it did below the earlier Emergencies. The Ordinance deprives Parliament of this essential constitutional energy of test and stability. It denies our democracy. “It’s astonishing pillar of our Structure is suspended, while different companies are allowed to function,” the attorneys mentioned when commenting on the suspension of Parliament throughout the Emergency.

The attorneys additionally highlighted one of many Emergency Ordinance’s provisions, which supplies that the federal government can’t be sued or prosecuted in court docket for any actions, omissions, neglect or default performed in finishing up the provisions of the Emergency Ordinance if it had occurred “in good religion”.

Citing this provision, the attorneys mentioned the Emergency Ordinance really seeks to offer the federal government immunity from accountability or scrutiny by the courts over the federal government’s actions or omissions, arguing that this could not defend Malaysians from abuse of energy. “The ‘good religion’ exception doesn’t, in actuality, afford safety towards overzealous train of energy or an abuse of it,” the attorneys mentioned.

“It’s axiomatic that no abuse of energy by the Govt can ever be insulated from scrutiny by the courts,” they mentioned when arguing that it’s self-evident that any abuse of energy by the federal government can not keep away from court docket scrutiny. “It’s regrettable that the weather of reasonableness and proportionality are absent on this matter. Different measures talked about within the Ordinance, that are instantly associated to the pandemic, are achievable via different means.

The 10 former Malaysian Bar presidents appeared to trace on the Emergency Ordinance provisions as being the precise cause why the federal authorities had hunted for Emergency to be declared nationwide, saying: “The Ordinance is subsequently a window into the true cause for the Proclamation.” The Proclamation of Emergency nationwide was gazetted on January 12, and deemed to be in impact from January 11 to August 1. The Emergency (Important Powers) Ordinance 2021 was gazetted on January 14, however deemed to have taken impact from January 11 onwards.

In his January 12 speech on the Emergency declaration by the Yang di-Pertuan Agong, Prime Minister Tan Sri Muhyiddin Yassin had mentioned that every one elections and Parliament sittings will likely be suspended, however gave his assurance that the judiciary will proceed to operate throughout the Emergency and that the courts is not going to face any authorities interference.

Other than assuring that the civilian authorities’s administration and public providers would proceed uninterrupted, Muhyiddin had additionally mentioned financial actions will proceed on throughout the Emergency based on the assorted motion management orders and commonplace working procedures, whereas additionally saying that Malaysia stays dedicated to good governance and that the Emergency would offer “a lot wanted calm and stability” to allow the nation to concentrate on financial restoration.