46 The Essential (Security Cases) Regulations 1975 and the Essential (Security
Cases) (Amendment) Regulations 1975 were made under the Emergency (Essential
Powers) Ordinance, 1969, Ordinance No I of 1969. The nature of these Regulations is discussed infra.
47
Since none of the Proclamations of Emergency in Malaysia had been revoked, the question arose in Teh Cheng Poh, whether a later Proclamation operated to revoke a previous one. The Privy Council decided this question in the affirmative.
[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 f o r c e d
In Teh Cheng Poh, the continued operation of a Security Area Proclamation throughout the whole of Malaysia, by virtue of a Proclamation o f the Yang di- Pertuan Agong under Section 47 of the Internal Security A ct, 1 9 6 0 ,^ was also
48
Since Independence there has been four Proclamations of Emergency in Malaysia of which none has been revoked so far. Of these four, two had been proclaimed locally, one in the State of Sarawak in 1966 and the other in the State of Kelantan in 1977. States of Emergency were proclaimed throughout Malaysia in 1964, on account of the Malaysia-Indonesia ‘Confrontation’, and in 1969 in the wake of ethnic violence.
In the case of the two nationwide states of emergency, the question as to the necessity of proclaiming the 1969 Emergency, when the 1964 Emergency was still in force, has not been answered by commentators. It could perhaps be said that the previous emergency was an "external emergency" occasioned by an external threat, while the latter one was an "internal emergency". The original Constitution [Article 150 (1)] had specified the types of emergency as those arising from "war or external aggression or internal disturbance". It is to be noted, however, that the consequences of a Proclamation of Emergency are the same, regardless of whether the Proclamation was based on "internal" or "external" circumstances.
49
Teh Cheng Poh, op. cit., at 53. The Privy Council’s findings in this regard prompted the insertion of a new constitutional provision by the Constitution Amendment Act, 1981, Act No. A514 of 1981. Under the new provision, Article 150 (2A), different Proclamations of Emergency may be issued on different grounds or circumstances, regardless of whether a Proclamation is already in force.
Federation of Malaya Act No. 18 of 1960, revised in 1972 as Malaysia Act No. 82 of 1972. The Act was passed under Article 149 of the Constitution for "the prevention of subversion, the suppression of organised violence ...". Section 47 of the Internal Security Act, 1960 provides:
(1) If in the opinion of the Yang di-Pertuan Agong public security in any area in the Federation is seriously disturbed or threatened by reason of any action taken or threatened by any substantial body of persons, whether inside or outside the Federation, to cause or to cause a substantial number of citizens, to fear organized violence against persons or property, he may, if he considers it to be necessary for the purpose of suppressing such organised violence, proclaim such area as a security area ....
(2) Every proclamation ... shall remain in force until it is revoked by the Yang di-Pertuan Agong or is annulled by resolutions passed by both Houses of Parliam ent...".
challenged. It was contended that since the causes which gave rise to the Proclamation of Security Area had long subsided, the Proclamation must be treated in law as having lapsed. The Privy Council denied that the Security Area Proclamation could lapse ipso facto without express revocation by the Yang di-Pertuan Agong or its annulment by Parliament. But in obiter remarks, the Privy Council suggested that courts could grant a remedy in cases:
in which it can be established that a failure to exercise ... [the Yang di-Pertuan’s] power of revocation would be an abuse of his discretion.5 *
The Yang di-Pertuan Agong’s constitutional immunity from proceedings in Court52 prompted the Privy Council to suggest that:
since ... [the Yang di-Pertuan Agong] is required in all executive functions to act in accordance with the advice of the Cabinet, mandamus could ... be sought against the members of the Cabinet requiring them to advise the Yang di-Pertuan Agong to revoke the Proclamation.55
If, as is suggested in the dictum of the Privy Council in Teh Cheng Poh, it is possible to institute mandamus proceedings against the Executive to compel it to revoke a Security Area Proclamation, then by analogy, the same course could be taken for bringing an end to a Proclamation of Emergency. Remote though the possibilities of success in such proceedings may have been, the potential effect of the holding of the Privy Council in this regard has been sought to be foreclosed by amending the emergency provisions of the Malaysian Constitution so that a Proclamation of Emergency and its continued operation is non-justiciable 5^
Malaysia was declared to be a "Security Area" under the provisions of this Act, on the same day that Emergency was proclaimed on May 15, 1969. Both of those Proclamations had been continuing since then.
^ Teh Cheng Poh, op. cit., at 55.
Article 32 (1), Constitution of Malaysia. ^ Teh Cheng Poh, op. cit., at 55.
^ Article 150 (8), Constitution of Malaysia, inserted by Constitution Amendment Act, 1981, Act No. A514 of 1981.
Emergency Legislative Powers of the Executive
Extensive legislative powers are afforded to the Executive under the Constitutions of Malaysia and Sri Lanka during a state of emergency.^ The Constitution of Malaysia and Sri Lanka’s Public Security Ordinance, 1947, expressly declare that emergency ordinances and regulations are non- justiciable.*^ in the Constitution of Bangladesh, there is no separate head for legislative powers of the Executive during Emergency but the general legislative powers of the President under the Constitution of Bangladesh*^ are applicable to emergency situations as w e ll.^
In Malaysia, an Emergency Ordinance promulgated by the Yang di-Pertuan, like a Proclamation of Emergency, is merely required to be "laid before" Parliament, without any stipulation for Parliament’s "approval" for the ordinance’s continued operation. An Emergency Ordinance in Malaysia can, however, be annulled by resolutions of both Houses of P arliam ent.^ In the event that an Emergency Ordinance is annulled at any time by resolutions of Parliament, the Yang di-Pertuan Agong is empowered to issue fresh ordinances. The power of the Yang di-Pertuan to promulgate emergency ordinances is not only co-extensive with the powers of the Malaysian Parliament, but in a sense even more pervasive for this power is declared to be unencumbered by any extraordinary legislative procedures that may be required.^ *
^ Article 150 (2B), Constitution of Malaysia; Article 155 (2), Constitution of Sri Lanka, 1978, and Section 5, Public Security Ordinance, 1947, as amended.
^ Article 150 (8),Constitution of Malaysia; Section 8, Public Security Ordinance, 1947. 57
Article 93, Constitution of Bangladesh. 58
The Emergency Powers Ordinance, 1974, Ordinance No. XXVII of 1974, and the Emergency Powers Ordinance, 1987, Ordinance No. XXII of 1987, were promulgated under this general power.
SQ
Article 150 (3), Constitution of Malaysia.
60
Ibid. The phrase used in Article 150 (3) is "any ordinance". This implies that the Yang di- Pertuan Agong is authorized to issue a fresh emergency ordinance on the same topic as that annulled by Parliament, and in the same way as the annulled ordinance was promulgated. ^ Article 150 (2C), Constitution of Malaysia. This amended (1981) provision seems to imply that the Executive’s emergency legislative powers extends to constitutional amendments as well.
Under the Sri Lankan Constitution, no parliamentary approval is required for the validity and operation of Emergency Regulations made by the President. But these Regulations may be added to, or altered, or revoked by Parliam ent.^
Ordinances promulgated by the President of Bangladesh, which includes Emergency Ordinances, must be approved by Parliament within thirty days. The legislative powers of the Executive in Bangladesh extends to all matters on which Parliament has competence, but no authority is given to the Executive for altering or repealing any provision of the Constitution, or for continuing any provision of a previous o rd in a n ce^
In the remainder of this section, selected case-law on the emergency legislative powers of the executive will be examined with reference to each of the countries.
A. Malaysia
Under the original provisions of the Constitution of Malaysia, the Yang di- Pertuan Agong was competent to promulgate Emergency Ordinances on grounds of necessity until Parliament reconvened.*^ Courts in Malaysia have interpretated this emergency legislative power of the Yang di-Pertuan Agong in expansive terms. In Johnson Tan Han Seng v Public Prosecutor,**** the Federal Court of Malaysia observed that:
[the Yang di-Pertuan Agong] has, and is intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself.... I f ... [the emergency ordinance] is legislation, within the ambit of the affirmative words [of the Constitution] which gives the power, and if it does not violate *^ Section 5 (3), Public Security Ordinance, 1947.
^ Article 93(2), Constitution of Bangladesh. ^ Proviso to Article 93(1), Ibid.
^ Original Article 150 (2), Constitution of Malaysia.
^ [1977] 2 M.L.J. 66; sub nom. Soon Seng Sia Heng v Public Prosecutor, Public Prosecutor v Che a Soon Hoong, Teh Cheng Poh v Public Prosecutor.
any express condition or restriction by which that power is limited, it is not for this court, or for that matter any court, to inquire further, or to enlarge constructively those conditions or restrictions.^
The Courts have been prepared to uphold, in similar terms, delegated regulation-making authority under an emergency ordinance.*^ Since under the original provisions of the Malaysian Constitution, the Yang di-Pertuan Agong could promulgate Emergency Ordinances only until Parliament resumes sitting, the defence in Public Prosecutor v Khong Teng Khen & A n o th e fö challenged the continued emergency regulation-making authority of the Executive even after Parliament had reconvened. In this regard, Suffian L.P., giving the majority opinion of the Federal Court asserted that:
[the emergency regulations in question] were made ... not under clause (2) of Article 150 [of the Constitution] but under section 2 of the ... [Emergency (Essential Powers) Ordinance, 1969,] and in my judgement the fact whether or not at the time they were made Parliament was in existence or was sitting is irrelevant. His Majesty has power to make Ordinances under clause (2) of Article 150 only when Parliament is not sitting. In the case of regulations under section 2 of the Ordinance they may be made by His Majesty whether or not Parliament is sitting.^
Under the Malaysian Constitution, emergency laws and ordinances are valid notwithstanding any inconsistency with the guaranteed constitutional rights or with any other provision of the Constitution.^ Another question for
^7 Ibid., at 75, per Raja Azlan Shah F.J.
68
The emergency regulation-making power was delegated to himself by the Yang di-Pertuan Agong. By Section 2(1) of the Emergency (Essential Powers) Ordinance, 1969:
the Yang di-Pertuan Agong may make any regulations whatsoever (in this Ordinance referred to as "Essential Regulations") which he considers desirable or expedient for securing the public safety, the defence of Malaysia, the maintenance of public order and of supplies and services essential to the life of the community.
69 [1976] 2 M.L.J. 166.