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King’s emergency declaration constitutional but can be challenged if there is evidence of bad faith, says Sri Ram

KUALA LUMPUR (Jan 13): Malaysia’s emergency declaration by Yang di-Pertuan Agong Al-Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah is constitutional as the government said the move is needed due to the Covid-19 pandemic and flood situation, and because the facts relied upon by the government fall within the ambit of Article 150 of the Federal Constitution, said former Federal Court judge Datuk Seri Gopal Sri Ram (pictured).

Sri Ram, however, said the King’s emergency declaration can be challenged if anyone had cogent evidence that the declaration was done in bad faith or for a collateral purpose.

“It is not possible or advisable to call for fresh elections now given the national disasters (Covid-19 and the flood situation). 

"Therefore, it becomes an exigency to make laws in accordance with Article 150. Therefore, the declaration of emergency is constitutional.

“Despite the declaration of emergency, the [court’s] fundamental rights and the court's powers to enforce them remain as these are part of the basic structure of the Constitution. Any action that violates the basic structure is void,” Sri Ram told theedgemarkets.com.

Sri Ram said statements outside Parliament on the withdrawal of support for the Perikatan Nasional (PN) government led by Prime Minister Tan Sri Muhyiddin Yassin, meanwhile, may constitute an attempt to undermine the present government beyond constitutional means. 

According to Sri Ram, this is because the test of confidence in the government lies on the floor of Dewan Rakyat or the Lower House of Parliament.

“Thus far, the budget (Budget 2021) and other legislation were passed despite vociferous calls for a no-confidence motion. 

"Furthermore, statements of withdrawal of support out of Parliament may constitute an attempt to undermine the present government other than by constitutional means. 

"This threat is also relevant to the declaration of an emergency,” Sri Ram said.

Looking back, Sri Ram cited today the late former Sarawak chief minister Tan Sri Stephen Kalong Ningkan’s case in 1966 as a comparative example involving the challenge of Malaysia’s emergency declaration.

According to online reports, Ningkan's call for state-wide elections in Sarawak prompted the federal government to call for an emergency declaration, which was challenged by Ningkan as he was removed as the chief minister for the second time.

Ningkan, who was the Sarawak chief minister in 1966, was initially removed from the post by the Sarawak governor in June 1966, according to reports.

It was reported that Ningkan, however, challenged the removal via legal action in the High Court and he was reinstated as the Sarawak chief minister by the court in in early September 1966.

It was reported that Ningkan was ousted as the chief minister for the last time at the end of September 1966 and replaced by the late Datuk Seri Tawi Sli as the new chief minister.

Yesterday, the Malay Mail reported that Selayang Member of Parliament (MP) William Leong said he and a group of concerned lawyers and citizens were exploring avenues to legally dispute the Proclamation of Emergency issued yesterday.

It was reported that the PKR lawmaker said they are studying the declaration and will announce further details once they are ready to launch their action. He reportedly stressed that the move is not a challenge against the Yang di-Pertuan Agong’s authority to issue the proclamation, but rather the advice upon which he acted when doing so.

The King yesterday declared an emergency across Malaysia after the government announced on Monday the implementation of various levels of the movement control order (MCO) to curb the Covid-19 pandemic.  

On Monday, the government reinstated the MCO in Penang, Selangor, Melaka, Johor and Sabah as well as the federal territories of Kuala Lumpur, Putrajaya and Labuan for a two-week period starting from today.

In a national address on Monday, Muhyiddin said these states and federal territories were considered high-risk areas following a risk assessment as well as the evaluation of health services by the Ministry of Health (MoH).

Meanwhile, the conditional movement control order (CMCO) would be enforced in six other states — Pahang, Perak, Negeri Sembilan, Kedah, Terengganu and Kelantan — while Perlis and Sarawak would be under the recovery MCO (RMCO) during the same period.

The state of emergency, meanwhile, will be enforced across Malaysia up to Aug 1, 2021 as a proactive measure to contain the Covid-19 pandemic in the country.

Istana Negara's Comptroller of the Royal Household Datuk Ahmad Fadil Shamsuddin said in a statement yesterday the King had decreed that the emergency be in force up to that date or until an earlier date if the number of Covid-19 cases in the country is effectively controlled and reduced.

In another development, three MPs from the government bloc have announced the withdrawal of their support for the PN government.

Yesterday, Padang Rengas MP Datuk Seri Mohamed Nazri Abdul Aziz of Umno announced that he was withdrawing his support for the PN government.

The announcement was made at a press conference at the Umno headquarters here just a few hours after the prime minister made a special announcement on the proclamation of the nationwide Covid-19-driven emergency.

Mohamed Nazri was the third MP from the government bloc to have withdrawn support for the PN government after Gua Musang MP Tengku Razaleigh Hamzah and Machang MP Datuk Ahmad Jazlan Yaakob, both of which are also from Umno.

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