Friday, January 15, 2021

Emergency proclamation: Political or Real?

The move by Prime Minister, Tan Sri Muhyiddin Yassin to seek DYMM Seri Paduka Baginda Yang DiPertuan Agong to proclaim Emergency is being seen with sceptic eyes. Undoubtedly, the power to proclaim lies with His Highness, and in an earlier attempt, His Highness did deny the executive request for an emergency. 

The power of Agong is not in question, but the request and advise strangely came after Muhyiddin announced MCO a day before Agong made the Emergency Proclamation for the same health purpose. Its applying two laws for the same and single purpose. 

The discussion will not end and it will continue to be discussed from the perspective of the law, politics, economy, government performance, effectiveness of PN as government without majority support, and Muhyiddin and the psyche of his party PPBM.

If done correctly and fairly, Emergency could be made to good use to reset the country on to the right path but the authority and leadership must be given the right people.   

Advisory Committee to Agong 

During the 1969 Emergency, Tun Abdul Razak was appointed by the then Agong to be the Director of Operations by the National Operations Council (NOC or the Malay acronym MAGERAN). 

The late Tun was assisted by a Council Members comprising of Home Minister, Finance Minister, "Infrastructure" Minister, Information Minister, Chief Secretary to the Government, Military Chief, Police Chief and Foreign Minister.   

The day-to-day running is done by a Chief Executive Officer headed by a Lieutenent General and assisted by representative from MINDEF, a young police officer by the name of Haniff Omar, and someone from the Attorney General Office. 

There is an opinion that Muhyiddin, as the Chairman of the Emergency Cabinet, is applying Article 150 (4) of the Federal Constitution for emergency to not form an NOC, but different arrangement with the executive power of the Cabinet Minister remained. 

In a group WA, a Minister replied to Zunar cartoon which cynically described the purpose of the Emergency was to save Muhyiddin. 

With the advisory committee to comprise of government and opposition, will it be similar to the 1969 NOC with the exception of having the opposition included? Will it mean there is a different person for the independent advisory committee chairman to the Agong than PM?

The Agong did mentioned of a bipartisan, independent experts committee that will govern or supervise the Emergency, and advise him. No details given in the press statement so not much is known. With the ruling government having minority support, it is only fair for the Opposition to lead the advisory committee (like the PAC) to ensure check and balance?

The Chairman could be Tengku Razaleigh or perhaps, bring in former assistant to the CEO of 1969 NOC, Tun Hanif Omar. A more current choice could be Tan Sri Musa Hassan. Former Chief Justice Tun Zaki is another.  

If opposition is represented, will it mean the likes of Ronnie Liew will have a place?

On the government side, someone from anti-corruption is needed to combat opportunist taking advantage of goverment medical supplies and fast track direct negotiations of contracts. 

Retired MACC Commisioner, Tan Sri Shukri is one name. Instead of a crier, a true bawler as in Tan Sri Dzulkiflee Ahmad could be a better choice. 

There is an urgent need for more health expert because over reliant on current Advisers is the one that got us where we are today. Tan Sri Jamilah not doing sufficient homework as Adviser to PM and merely mouthpiece to certain political interest. While, Tan Sri Noor Hisham is being said to be over domineering and increasingly public is forming the perception he is mere theatrics.     

More experts on welfare should be brought in. The government is looking at the pandemic problem as merely from the health and economic perspective. It is wrong because it is about LIFE and should also see beyond the crisis. 

If any economic adviser/s are to be included, it should be those with the far sightedness and innovativeness in preparing to rebuild the nation after the pandemic and able to seize any scarce long-term opportunity for the country. After the pandemic is over, what is the country going to do? 

None of the Ministers in planning, regulating, managing and executing economic plans have it. Executive cabinet of Muhyiddin need be guided until the next general election. 

Muhyiddin cannot be empowered as any PM would usually be because Nazri Aziz's withdrawal of support for PN means he does not command the majority and should resign for an election to be called or another PM appointed by Agong. 

The need for emergency is still being questioned. 

GK Ganeson is of the view that calling Emergency with a capital E to address Covid pandemic is not sufficient as it is merely an emergency with small case e. He is of the opinion Agong was wrongly advised and the Emergency Proclaimation could be challenged in court.

It would be left to lawyers to do so as it is politically suicidal for any opposition to oppose the decree of Agong made in accordance with the Federal Constitution. 

To lawyer, activist and politician Buzze Azam, his surprise is the same on MCO announcement prior to Emergency. Emergency status is above the MCO but the procedure applied is MCO thus no other term such as PKP, PKPB, PKPP, PKPD, etc required.  

He expect an NOC be established and the Prime Minister and cabinet Ministers suspended. He differed with other politicians' view that Emergency will give absolute power to PM.   

PAS's Zuhdi Marzuki has a different take:

Mohon berbeza pandangan.

Darurat tahun 1969, Kerajaan Persekutuan belum terbentuk yang ada care taker government. Waktu tu Tunku masih di Kedah selepas PRU, berlaku peristiwa 13 Mei. 

YDP Agong telah isytihar darurat, dan lantik Tun Razak sebagai Pengerusi Mageran kerana Tun Razak pemimpin paling kanan berada di Kuala Lumpur.

Anggota kabinet memang tidak wujud kerana lepas PRU, bukan digantung.

Tan Sri Shahrir Samad has questions on the Emergency Proclamation.     

Azwan Omar wrote:

Meneliti semula Kenyataan dari Istana Negara berkenaan Proklamasi Darurat yang dibangkitkan oleh Tok Uban, beberapa persoalan yang memerlukan penjelasan yang tuntas dan tegas, antaranya:

1. Tidak dinyatakan secara nyata oleh Istana Negara mengenai skop Darurat berkenaan fungsi Parlimen dalam tempoh yang dinyatakan.

2. Wajarkah YAB Perdana Menteri di dalam perutusan beliau pada 12 Januari 2021 melangkaui Kenyataan Darurat dengan menggambarkan bahawa Parlimen digantung (Parliament Suspension)?

3. SPB Yang di-Pertuan Agong berkenan satu Jawatankuasa Khas ditubuhkan, yang terdiri daripada Ahli-Ahli Parlimen Kerajaan dan Pembangkang untuk menasihati Seri Paduka Baginda menarik semula Kuasa Darurat (lifted),  Bukankah ini bukti jelas bahawa Parlimen masih berjalan dan tidak digantung?

4. Bukankah perutusan YAB Perdana Menteri mengenai Darurat tempoh hari boleh ditakrifkan sebagai satu Rampasan Kuasa (Coup de'tat) kerana ianya melangkaui Kenyataan Istana Negara.

Maka, wajarlah Peguam Negara tampil memberikan penjelasan kerana ianya nampak pelik dan membimbangkan.

Kuasa dan Skop Darurat tidak boleh ditentukan melalui andaian dan ianya harus jelas dan nyata kerana ia melibatkan kesan kepada Perlembagaan dan Legitimasi Undang-Undang seperti pengisytiharan Ordinan-Ordinan yang menjadi undang-undang yang mengawal negara.

Peguam Negara tidak boleh diam kerana beliau bukan sahaja Peguam kepada Kerajaan, beliau juga Peguam kepada Seri Paduka Baginda. Dimana beliau?

Is this a political coup?

Lawyer Hanif Khatri believed that Agong has the prerogative to establish Advisory Council to the Agong in the event Muhyiddin lost his majority and the council is made up of non-politicians or some ex-politicians. He may intended it for Tun Dr Mahathir.  

Malaysian Muslim Lawyers Association Presiden, Dato Zainul Rijal stressed that the common law can be suspended and the power of the executive lies with Agong, who is empowered to issue an emergency ordinance in accordance with article 150(2c).  

Dato Prof Emeritus Shad Saleem Faruqi's opinon as shared by a lawyer is as followers: 

Executive powers: While a proclamation is in force, the executive authority of the Federation extends to any matter within the legislative authority of a state. Under Article 150(4), the federal government can give directions to the states or any of its officers. This means that the constitutional separation between the federal and the state executive can be ignored. 

It is clear, therefore, that emergency powers in Article 150 provide the basis for a special legal system that is parallel to and superior than the legal order established under the Constitution. 

Limits: Despite the above, some misconceptions must be corrected. There is a popular but mistaken view that once an emergency is proclaimed, the Constitution is automatically suspended, parliament is dissolved, cabinet is dismissed, elections are postponed, human rights are suspended, and the federal government automatically acquires state powers. 

Actually, a Proclamation of emergency does not automatically suspend any law or institution or procedure. It only opens the gates to the enactment of emergency laws by Parliament or the Yang di-Pertuan Agong if they so choose. One must distinguish between an Emergency Proclamation (which is just a declaration) and an Emergency Act or Ordinance which provides the law. 

The Constitution: During an emergency, the Constitution and ordinary laws are not automatically suspended, though they can be. Further, there is a presumption that any emergency law’s inconsistency with the Constitution must be express, not implied:

Lee Mau Seng (1971). Under an emergency law, provisions of the Constitution can be eclipsed but not repealed and will revive six months after the emergency ceases.

Parliament: Parliament is not automatically required to be sent off on prorogation or dissolution, though the government acquires the power to do. It is understood that presently the Federal Parliament and State Assemblies will be suspended but not dissolved. Article 55(1) requiring no more than six months between two sessions may be suspended.

Elections every five years need not be held. It is noteworthy however, that during the emergency era of 1964 to 2011, eleven General Elections were held and federal and state legislatures elected. This time around, however, Sarawak’s 82-seat state election due on or before 17 August may have to be postponed. 

If during the period of this emergency, no federal or state elections are held to avoid a spike in covid cases,  party-hoppers will be deprived of the nefarious opportunity to bring about the fall and rise of governments as happened eight times between 2018-2020 at the federal level, in Sabah (twice), Perak (twice), Johor, Melaka and Kedah. 

If there is political stability and continuity, this may help economic recovery and invite foreign investment.       

Human rights: Fundamental rights are not automatically rendered ineffective, though Parliament acquires the power to abridge them. 

Courts: The courts of the land remain in operation and are not replaced by military courts. Habeas corpus is not suspended. All rights and privileges and all institutions and procedures remain in effect unless an emergency law explicitly says to the contrary. 

Civilian government: The army does not take over. Curfew is not declared. A civilian government (the cabinet) remains in place unless an emergency law provides otherwise. 

Substantive limits: All emergency laws, whether by Parliament or the Yang di-Pertuan Agong, have to comply with the requirements of Article 151. This Article deals with safeguards for preventive detainees. 

Under Article 150(6A) no emergency law can touch on matters of Islamic law, custom of the Malays, native law or custom in Sabah and Sarawak, religion, citizenship, or language. 

If emergency comes to an end, it is provided in Article 150(7) that any laws made during the emergency will cease to have effect after a grace period of six months beginning with the date on which the proclamation of emergency ceases. 

PM’s powers under the emergency: The PM continues to enjoy his ordinary powers. The nature and extent of his emergency and extraordinary powers depends on the Ordinances promulgated.  

What does "tidak mempunyai kesan" means?  

Can elections be held during the emergency?
An emergency does not automatically suspend any law. During the emergency era of 1964 to 2011 several General Elections were held. However, elections can be suspended if and only if a specific emergency law is promulgated to suspend the relevant constitutional provisions.

Addressing life

In conclusion, the justification for an Emergency is merely an emergency. The government failed to give a justifiable reason. The intention was politics. 

Hanif Khatri accepted politics as justifiable. A senior writer associated with the pro-PPBM faction in UMNO indirectly admitted the motivation of Emergency was politics. A staff at the Prime Minister's Office boasted as PPBM successfully pulled a number on UMNO. And, most political commentator viewed it to checkmate UMNO's attempt to topple Muhyiddin and in return, it could checkmate UMNO.   

With the government having limited financial resources for new phase of MCO and past promises failed to be fulfilled, test of Muhyiddin's popularity could be seen within two weeks. 

The problem with the Corona Covid-19 pandemic is not merely health or economic aftermath, but life. And, for 10 months Tan Sri Muhyiddin failed to address the life of the nation and its populations with all area of life points downward. He was merely fire-fighting and dramatising his little limited achievements. 

Without sufficient experience in economics, trade and foreign affairs, he was heedless and had no plan. Can he come up with a plan for the next 7 months which he failed the last 10 months as PM and 22 months of PH government? 

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