71
Article 150 (6), Constitution of Malaysia, as amended by the Constitution Amendment Act, 1963, Act No. 26 of 1963. The original provision exempted only inconsistencies with the constitutional rights. By Article 150 (6A) Emergency Acts of Parliament may not derogate from Islamic Law, Malay custom, and the native law or custom of the States of Sabah and Sarawak.
determination in Khong Teng Khen was whether the Yang di-Pertuan Agong’s power to promulgate an Emergency Ordinance, inconsistent with the Constitution could be delegated so that Rules/Regulations made under an Emergency Ordinance could also derogate from constitutional provisions. The defence in Khong Teng Khen contended that it was only the Emergency (Essential Powers) Ordinance, 1969,^ and not the Essential (Security Cases) Regulations, 1975, made under the Ordinance, that may be inconsistent with the Constitution. Suffian L.P., giving the majority opinion, rejected the contention on the grounds that the provisions of the Ordinance itself enabled the making of Emergency Regulations which could be inconsistent with the Constitution. The learned Judge concluded that:
[bjecause of ... [Section 2 (4) of the Emergency (Essential Powers) Ordinance, 1969,] it is lawful in my view for His Majesty to make essential regulations that are inconsistent with the Federal Constitution.
The question of the continued exercise of delegated emergency regulation making power by the Yang di-Pertuan Agong assumed far-reaching significance in the landmark decision of the Privy Council in Teh Cheng Poh v Public Prosecutor The significance of this question was foreshadowed, albeit in an ambiguous m a n n e r , i n the dissenting opinion of Ong Hock Sim F.J. in Public Prosecutor v Khong Teng Khen & A n o t h e rReferring pointedly to the subversion of parliamentary process and constitutional rule that was entailed by the continued operation of the emergency rule-making power of the Yang di-Pertuan Agong, the learned Judge had observed that:
Further, neither emergency laws nor ordinances may be inconsistent with the constitutional provisions on religion, citizenship, or language.
72
Delegation in this context meant the Yang di-Pertuan Agong "delegating" the power to himself.
7^ Ordinance I of 1969, published as P.U. (A) 146/69. 7<* Khong Teng Khen, op. cit., at 170.
75 [1979] 1 M.L.J. 50.
The ambiguity was because of the learned Judge’s reference to the termination of the emergency because of resumption of Parliament’s sitting.
[i]f these regulations are held valid, there appears no control as to the regulations the Executive may issue under the guise of an Emergency which had ceased to exist when Parliament was reconvened....
In Teh Cheng Poh, the Privy Council examined the implications of the two alternative sources of the Executive’s emergency law-making power. Of the constitutional source, the Privy Council observed that:
[s]o far as ... [the Yang di-Pertuan Agong’s] power to make written laws is derived from Article 150 (2) of the Constitution itself, in which they are described as ‘ordinances’, it comes to an end as soon as Parliament first sits after the Proclamation of an Emergency; ... [the Yang di-Pertuan Agong] cannot prolong it, of his own volition, by purporting to empower himself to go on making written laws, whatever description he may apply to them. That would be tantamount to the Cabinet’s lifting itself up by its own boot strap s.^
The claim by the State that the Executive’s emergency regulation-making power may be derived from the Emergency (Essential Powers) Ordinance, 1969, was similarly unacceptable to the Privy Council.
To the extent ... that the ... Ordinance purports to authorise the Yang di-Pertuan Agong to continue to make instruments having the force of law notwithstanding that Parliament had sat, it suffers from the fatal constitutional flaw that such exercise of legislative power by the ... [Yang di-Pertuan Agong] after Parliament has sat, is not authorised by the Constitution itself nor has it been delegated to him by Parliament in whom the legislative authority of the Federation is v ested .^
The decision of the Privy Council in Teh Cheng Poh meant that all subsidiary emergency regulations made by the Yang di-Pertuan Agong since Parliament
o i
reconvened in 1971, after the Proclamation of Emergency in 1969,° 1 were
78 Ibid., at 175.
7Q
Teh Cheng Poh, op. cit., at 53. 80 Ibid.
81
The state of emergency in question was declared on May 15, 1969, as a result of ethnic rioting. The Proclamation of Emergency is published as P.U. (A) 145/69. After this Proclamation, Parliament first reconvened about two years later, on 20 February 1971.
invalid and v o id ^ . In order to overcome the far-reaching legal consequences of the Privy Council decision, the Malaysian Parliament re-enacted the controversial Emergency (Essential Powers) Ordinance, 1969, as the Emergency
(Essential Powers) A ct, 19 7 9 ,^ with retrospective effect from 1 9 7 1 .^ By s. 9
(1) of the new Act, all subsidiary legislation made under the previous Ordinance were to have effect as if they were made under the Act.
Every subsidiary legislation whatsoever made or purporting to have been made under the Emergency (Essential Powers) Ordinance, 1969, ... on or after the 20th February 1971, shall be valid and have effect as if the said subsidiary legislation has been made under the appropriate provision of this A c t ...
82
Writing extra-judicially, Tun Suffian F.J. has remarked that:
it meant not only that the trial of Teh Cheng Poh was a nullity. There were hundreds of other trials held under the regulations. They too were a nullity. In some of them persons had been sentenced to imprisonment or even death, though fortunately nobody had yet been executed.
(Tun Mohamed Suffian, Malaysia and India - Shared Experiences in the Law, V.V. Chitaley Memorial Lectures, Nagpur, All India Reporter Ltd., 1980, 88, quoted in H.P. Lee, Emergency Powers in Malaysia, in FA . Trindade & H.P. Lee (Eds), The Constitution of Malaysia: Further
Perspectives and Developments, Singapore, Oxford University Press, 1986, 135-156, at 145. 83 Act No. 216 of 1979.
84 .
In their decision in Teh Cheng Poh, the Privy Council indicated that such a course was possible.
If it be thought expedient that after Parliament has first sat the Yang di- Pertuan agong should continue to exercise a power to make written laws equivalent to that to which he was entitled during the ... period [when Parliament was not sitting] to exercise under Article 150(2) of the Constitution, the only source from which he could derive such powers would be an Act of Parliament delegating them to him.
Teh Cheng Poh, op. cit., at 53.
The Long Title to the Emergency (Essential Powers) Act, 1979, stated:
An Act under Clause (5) of Article 150 of the Federal Constitution to enact as an Act of Parliament the Emergency (Essential Powers) Ordinance, 1969, and to provide for the validation of all subsidiary legislation made or purporting to have been made under the said Ordinance on or before the 20th February 1971, and for the validation of all acts and things done under the said Ordinance or any subsidiary legislation made or purported to have been made thereunder, and to provide for matters connected therewith.
The Teh Cheng Poh decision also prompted substantial changes in the emergency provisions of the Malaysian Constitution.^ Some of the changes which have been referred to above, include:
(a) the authority of the Yang di-Pertuan agong to issue different Proclamations at different times, irrespective of whether a Proclamation of Emergency is already in existence
(b) the emergency legislative power of the Yang di-Pertuan Agong to operate at all times when Houses of Parliament are not sitting concurrently;^
(c) the satisfaction of the Yang di-Pertuan Agong in proclaiming Emergency and in promulgating emergency ordinances is final, conclusive and non-justiciable.
(d) the continued operation of the state of emergency and of emergency ordinances are likewise non-justiciable.
B. Sri Lanka
Unlike the position under the Malaysian Constitution where the Executive has emergency legislative powers only when Parliament is not in session, the President in Sri Lanka can promulgate Emergency Regulations at all times during the operation of a state of emergency. The power of the Sri Lankan President to make Emergency Regulations pursuant to a Proclamation of Emergency ^ 1 includes the making of such Regulation:
as appear to him to be necessary or expedient in the interests of public security and the preservation of public order and the suppression of mutiny, riot or civil commotion, or for the
^ The Constiäition (Amendment) Act, 1981, Act No. A514 of 1981. ^ Article 150(2A), Constitution of Malaysia.
88 Article 150 (2B), Ibid. 89 Article 150 (8), Ibid. 90 Ibid.
maintenance of supplies and services essential to the life of the community.^
In addition to these general enabling categories, Emergency Regulations are also sanctioned for the purposes, inter alia, of preventive detention, search and entry, and special courts.*^ Emergency Regulations may also provide for the making of subsidiary legislation in the form of orders and rules by subordinate authorities.^
Under the Constitution of Sri Lanka, executive emergency regulations have the legal effect of:
over-riding, amending or suspending the operation of the provisions of any law, except the provisions of the Constitution.^
However, by Article 15(7) of the Constitution, Emergency Regulations can derogate from most of the guaranteed constitutional rights. Like the amended emergency provisions of the Malaysian C onstitution,^ Emergency Regulations in Sri Lanka have been declared to be non-justiciable.
No emergency regulation, and no order, rule or direction made or given thereunder shall be called in question in any co u rt.^
The delegation, to the Executive in Sri Lanka, of emergency legislative powers under the provisions of the Public Security Ordinance, 1947, was challenged, in a number of cases, as being ultra vires the powers of Parliament. In Gunasekera v R a t n a v a l edecided during the operation of the Independence Constitution of 1948, the Supreme Court of Ceylon (Sri Lanka) examined the origins of the Public Security Ordinance as an Ordinance promulgated by the colonial
92
Section 5(1), Public Security Ordinance, 1947, emphasis added. ^ Section 5(2), Ibid.
^ Section 6, Ibid.
^ Article 155(2), Constitution of Sri Lanka, 1978. ^ Article 150(8), Constitution of Malaysia. ^ Section 8, Public Security Ordinance, 1947. 98(1973) 76 N.L.R. 316.
Governor "with the advice and consent" of the State Council of Ceylon, and its continuation by the Independence Constitution. Without any further deliberations with respect to the constitutional position of a sovereign legislature, the Court concluded that:
[the] preamble to the ... [Ordinance] states that it was passed with the advice and consent of the [State] Council. This ... [Ordinance] which had been passed by the Council is therefore good law and continues to operate as such by virtue of Section 91 of the present C onstitution.^
This decision re-affirmed the findings of the same Court in an earlier decision where the question of delegation of emergency legislative powers was discussed at some length. In that decision, S. Weerasinghe v G. VP. Sam arasinghe}^ Sansoni C.J. undertook a comparative survey of several cases on delegated legislation from Canada, Australia and India and concluded that:
the Public Security Ordinance is intra vires, and the Regulations, as well as the orders and rules made under the authority of such Regulations, are also v a l i d . ^
The delegation of emergency legislative powers to the Executive by s. 5 of the Public Security Ordinance, 1947, has been reiterated by Article 155(2) of the present (1978) Constitution. Explaining this constitutional source of the President’s emergency legislative power, the Sri Lankan Court has observed that:
[t]he President’s power of making Emergency Regulations is ... co-extensive with that of Parliament, except for the limitation as
99 Ibid., at 329.
100 (1966) 68 N.L.R. 361.
^ Ibid., at 365. Among the cases discussed by the Chief Justice were, Reference as to the Validity o f Certain Chemical Regulations [1943] S.C.R. 1, Victorian Stevedoring and General Contracting Co. Pty. Ltd and Meakes v Dignan, (1931) 46 C.L.R. 73, Attorney-General (Commonwealth) v The Queen; Ex Parte The Boilermakers Society of Australia, [1957] A.C. 228, (1957) C.L.R. (P.C.) 529, and In Re Art. 143, Constitution of India and Delhi Laws Act, [1951] A.I.R. (S.C.) 332.
to the period during which the Regulations made by him can operate. ^ 2
The breadth of the Sri Lankan President’s emergency legislative powers, and issues as to the justiciability of such powers were summed up by the Court in this way.
Part II [of the Public Security Ordinance] vests the President with wide and extensive powers [for promulgating regulations] to deal with the emergency situation. The President’s view of the necessity and expediency of the regulations needed to combat the situation is conclusive of their necessity; and, in formulating them for the purposes of Sec. 5 [of the Ordinance, that is, for the purposes, amongst others, of "public security", and "public order"], he is bound only by the provisions of Article 155(2) of the Constitution. He is the sole judge of the necessity for the regulations. It is the subjective opinion of the President that matters; and in the absence of bad faith or ulterior motive, the jurisdiction of the Court is excluded. ^ 3
Despite the Sri Lankan Supreme Court’s virtual moratorium on challenges to Emergency Regulations promulgated by the Executive, the Court had, in some instances, appeared to assert its right to review executive orders made under Emergency Regulations which infringed upon constitutional rights. These will be discussed in the next Chapter.
C. Bangladesh
Like the amended emergency provisions of the Malaysian C o n stitu tio n ,^ the ordinance-making power of the President of Bangladesh is operative "at any time" when Parliament is not in session or is dissolved. Article 93 (1) of the Constitution of Bangladesh provides:
102
JA . Yasapala v Ranil Wickremesinghe & Others, Supreme Court Application No. 103 of
1980, reported in Fundamental Rights, Vol 1, Decisions of the Supreme Court of Sri Lanka, Vol
1 (April 1979 to December 1981), Sri Lanka, Lake House Investments, 1984,143-163, at 158.
3 Janatha Finance and Investments v DJ.F.D.L. Liyanage, Supreme Court Application No. 127
of 1982, reported in Fundamental Rights, Vol 2, Decisions of the Supreme Court of Sri Lanka, (April 1982 to December 1982), Sri Lanka, Lake House Investments, 1986, 373-3%, at 382-383,
emphasis added. See also JA . Yasapala, op. cit., at 155,157.
At any time when Parliament stands dissolved or is not in session, if the President is satisfied that circumstances exist which render immediate action necessary, he may make and promulgate such Ordinances as the circumstances appear to him to require, and any Ordinance so made shall, as from its promulgation have the like force of law as an Act of Parliament
In addition, Emergency Ordinances in Bangladesh have granted subsidiary legislative powers to the Executive in a way similar to those granted to the Malaysian Executive in emergency situations. Section 2 (1) of the Emergency Powers Ordinance, 1974,^5 for example, afforded extensive powers to the
Executive to make subsidiary emergency rules.
The Government may, by notification in the official Gazette, make such rules as appear to it to be necessary or expedient for ensuring the security, the public safety and interest and for protecting the economic life of Bangladesh, or for securing the maintenance of public order, or for maintaining supplies and services essential to the life of the community. ^
In Bangladesh, the thrust of litigation concerning executive emergency powers has been in relation to actions taken under Executive emergency ordinances and rules, not in relation to the vires to the ordinances or rules themselves, as have been the case in Malaysia and Sri Lanka. Since, in Bangladesh, most of the decided cases on emergency powers relate to infringements of rights by executive emergency orders taken under emergency ordinances and rules, these will be considered in the next Chapter.
Revocation/Termination of a State of Emergency
A Proclamation of Emergency in Malaysia, Sri Lanka or Bangladesh continues in force until revoked by the Executive or annulled or disapproved by Parliament. ^ Executive actions taken during an Emergency are protected, 105 Ordinance No. XXVII of 1974.
^ Similar powers were accorded to the Executive by Section 3 of the Emergency Powers Ordinance, 1987, Ordinance No. XXII of 1987.
^ Article 150 (3), Constitution of Malaysia; Section 2 (2), Public Security Ordinance, 1947, and Articles 155 (6) & (8), Constitution of Sri Lanka; Article 141A (2), Constitution of Bangladesh.
upon the expiry of a state of emergency, by indemnifying provisions in the Constitutions of Malaysia and B a n g la d e s h ^ and in Sri Lanka’s Public Security O r d i n a n c eIn Malaysia, the indemnity continues for a further period of six months after the termination of a Proclamation of Emergency, during which time, emergency laws are declared to be o p e ra tiv e .^
* * *
The discussion in the previous sections of this Chapter, on the justiciability of a Proclamation of Emergency and its continued operation, has indicated that it may be theoretically possible to challenge the validity of a Proclamation of Emergency. However, the procedural difficulties of demonstrating in a manner, which can be judicially determined, that the power of declaring an Emergency has been exercised in bad faith, deprive this proposition of practical importance. The more important dimension in the examination and interpretation of emergency powers is the manner and extent to which these powers may be permissibly applied. It is to these aspects that the discussion in the Chapters following this one will be directed.
^ Article 150 (7), Constitution of Malaysia; Article 141B, Constitution of Bangladesh. ^ Section 4, Public Security Ordinance, 1947.
CHAPTER V
CONSTITUTIONAL RIGHTS AND EMERGENCY: