In this Chapter, the trend of interpretation of the Malaysian Court, on questions of the rights of citizens during states of emergency, is characterized as the Formal Style. 1 The discussion of the case-law in Malaysia reveals a propensity on the part of the Court to be bound to the text of the Constitution and the emergency legislation considered in isolation from questions of value. It is also found that the Court has applied precedents, including those from other jurisdictions, in a rigid and mechanical manner, without considering the relevance of those in the context of the decisions. The Malaysian Court’s approach is therefore found to adhere to the elem ents of the formal style of interpretation.
States of Emergency in Malaysia
Malaysia achieved Independence in 1957^ during the pendency of an Emergency imposed in 1948 by the British Administration in the face of armed Communist movement.^ This state of emergency continued until 1960.4
^ The formal style of interpretation, or formalism is discussed in the Introduction, supra.
2
The name of the country at Independence was the Federation of Malaya. In 1963, the British colonial territories of Sarawak, Sabah (North Borneo), and Singapore was transferred to the Federation of Malaya. The Federation has since then been called Malaysia. Singapore left the Federation in 1965 to become an independent republic.
3
Emergency was declared on July 12, 1948, by a Proclamation under the Emergency Regulations Ordinance, 1948. The Proclamation by the British "Officer Administering the Government" of Malaya, and published as Gazette Notification No. 1921, July 13, 1948, No. 12, Vol. I, read:
Whereas section 3 of the Emergency Regulations Ordinance, 1948, provides inter alia, that the High Commissioner in Council, whenever it appears to him that an occasion of emergency or public danger had arisen, may, by proclamation, declare that a state of emergency exists, and that such proclamation may apply to the whole or any specified part of the Federation: Now therefore, I, being satisfied that an occasion of emergency had arisen, do hereby declare that a state of emergency exists, and that this Proclamation shall apply to the whole of the Federation.
4 The twelve-year old Emergency was terminated on July 31, 1960, per Legal Notice 185 of 1960. Most of the Regulations made under the Emergency Regulations Ordinance, 1948, which were
Malaysia’s first Proclamation of Emergency after Independence, made in accordance with the provisions of the Constitution,^ was in September, 1964^ on account of the ‘Confrontation’ with Indonesia.^ The Emergency was made applicable throughout the whole country. Two years later, in September, 1966, an Emergency was proclaimed in the State of Sarawak on account of irreconcilable conflict of interests between the Federal Government and the State Government of Sarawak.^ A second country-wide Emergency was proclaimed on May 15, 1969, in the face of ethnic rioting on controversial issues of electioneering in the federal and state elections. Yet another localised Emergency was declared in the State of Kelantan in 1977 owing to ruptures in the Federal-State relationship.^
Although the Constitution of Malaysia explicitly provides for the revocation of a Proclamatiom of Emergency, none of the four Proclamations of Emergency made in Malaysia since Independence have to date been term inated.^ Faced with issues arising out of the multiplicity of Proclamations of Emergency, the Privy Council in Teh Cheng Poh v Public P r o s e c u t o r observed that:
continued after Independence of Malaysia would have been unconstitutional if they were made after the Independence Constitution had come into force.
Article 150, Constitution of Malaysia.
^ The Proclamation of Emergency is published as L.N. 271/3.9.64. 7
The Confrontation with Indonesia was occasioned by Indonesia’s opposition to the transfer of the colonial territories of Sabah and Sarawak to Malaysia.
8 The Proclamation imposing the Emergency in the State of Sarawak is published as P.U. 339A/14.9.1966. The political and constitutional issues of the Sarawak crisis which led to the imposition of emergency rule in that state are discussed in the Stephen Kalong Ningkan cases: Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli, [1966] 2 M.L.J. 187; Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli (No. 2), [1967] 1 M.L.J. 46; Stephen Kalong Ningkan v Government o f Malaysia, [1968] 1 M.L.J. (F.C.) 119; Stephen Kalong Ningkan v Government o f Malaysia, [1968] 2 M.L.J. (P.C.) 238.
9
The 1977 Proclamation, applicable only to the State of Kelantan, is published as P.U. (A) 358/8.11.1977.
^ Article 150 (3), Constitution of Malaysia. Article 150 (3) provides for the revocation of a Proclamation of Emergency by the Yang di-Pertuan Agong or the annulment of a Proclamation by the Parliament. There is, however, no reference to a definite time-frame for the revocation of a Proclamation.
11
a proclamation of a new emergency declared to be threatening the security of the Federation as a whole must by necessary implication be intended to operate as a revocation of a previous Proclamation, if one is still in force. ^
But to overcome any effect of the implied revocation of an existing Proclamation of Emergency by a later Proclamation, as proposed by the Privy Council in Teh Cheng Poh, the Malaysian Constitution was amended in 1981 so that different Proclamations of Emergency can operate concurrently.^