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The Malaysian government can declare darurat because of...haze

8 months ago ZY Ho

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This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever. All articles have been scrutinized by a practicing lawyer to ensure accuracy.

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When we use the term “State of Emergency”, more likely than not you’d conjure up images from your sejarah textbooks about the communist insurgency. Presumably, you’d be recalling those black and white pictures of road blocks, people moving into the new villages and soldiers doing patrols. 

Image from searchinginhistory

 

Image from britishbadgeforum

 

But did you know that there has been talks about the government declaring a state of emergency again? Well this time it’s not because of communists terrorising our jungles, but it’s because of the heat. We all know that the weather these past couple of weeks have been on the hot side and according to a report by NST, the government can consider declaring a state of emergency if the temperature exceeds 40°c. 

If this does happen it wouldn’t be the first time a state of emergency was declared due to dangerous weather, because an emergency was declared in 2013 due to haze.

Now given that a state of emergency can be declared for reasons varying from commies to weather, here are 4 things you need to know...

 

1. An emergency starts with a proclamation by the YDPA

Our current YDPA Sultan Abdullah ibni Sultan Ahmad Shah.
Image from The Straits Time

According to the Federal Constitution a state of emergency starts with a declaration by the YDPA, because Article 150 of the Federal Constitution says:

“If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.”

This basically means that the YDPA can declare a state of emergency if he feels that the nation may experience some sort instability. But a state of emergency can’t simply be declared, because Article 150 must be read with Article 40:

In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister

This means that the YDPA declares the state of emergency, but only after he has been advised to do so by the government. And once that is done and a state of emergency has officially been declared….

 

2. Laws can be passed instantly

Normally when the government wants to do something, they have to make a law. This law making process is long and tedious and can sometimes take months, but if we were to simplify the process, it goes something like this:

  1. The government proposes a law to parliament 
  2. Parliament debate the issues with regards to the proposal 
  3. Parliament MAY make changes to the proposal
  4. Parliament votes on the law and gets it passed if they want to

[READ MORE: How are laws made in Malaysia]

Unfortunately during an emergency, the government may not have the luxury of time and laws have to be passed quickly. Which is why during an emergency the government can pass instant laws called ‘ordinances’. Under Article 150 (2B), ordinances can be passed through the YDPA and it will have the same power as an ordinary act of parliament (or in simpler terms, a law).

An example of such an ordinance was enacted when a state of emergency was declared during the May 13 Riots. To quell the unrest from the incident, the Emergency (Public Order and Crime Prevention) Ordinance 1969 was created for the purposes of arresting and detaining people without a warrant and trial. In other words...

 

3. These ordinances can infringe human rights

Article 5 of our Federal Constitution prevents the authorities from detaining you willy-nilly, because they’d need to get permission from a judge. But during an emergency, an ordinance can be made even though it goes against Article 5 – the Emergency (Public Order and Crime Prevention) Ordinance 1969 mentioned earlier is of point. And it’s not just limited to rights against wrongful detention, the government can make ordinances going against other rights.

But of course, whether or not ordinances will infringe constitutional rights depends on the situation at hand. Because if a state of emergency is declared for bad weather, an ordinance for detaining people may be unnecessary. Usually for weather emergencies, ordinances will be enacted to ensure the federal government can remedy the situation swiftly.

 

4. A state of emergency doesn’t last forever

Image result for keep calm and stay hydrated

Because the purpose of a state of emergency is to restore order to chaos, it doesn’t last forever. In other words, there’s a life span to a state of emergency.

Once order has been restored to the nation, the government can advise the YDPA to revoke his declaration of a state of emergency. In addition to that if Parliament decides that a state of emergency is no longer needed, they can vote to remove the state of emergency as well – returning the country’s governing system to the status quo.

In fact, some people may have actually gone through a state of emergency and not even know it. In 1966, because of a power struggle between the Sarawak government and the federal government, a state of emergency was declared; but it was only officially revoked in 2011.

Tags:
federal constitution
malaysia
yang di-pertuan agong
article 150
emergency power
state of emergency
declaration of emergency
ordinance

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