Infernal Ramblings
A Malaysian Perspective on Politics, Society and Economics

A Perpetual State of Emergency

Written by johnleemk on 10:18:27 am Mar 7, 2007.

One very uncommonly known fact about Malaysia is that it has been officially under a state of emergency since 1969 (at the latest; I can't recall now, but if a nationwide emergency had been declared earlier, then we would have been under emergency rule since then).

A more commonly, but still not too well-known fact is that the government has extremely wide-ranging powers under emergency rule. The government can promulgate law at will (to distinguish what laws are made by Parliament and what are made by the Prime Minister, recall that legislation passed by Parliament is called an "act", whereas that made by the PM is called an "ordinance"), with a few exceptions.

If you're familiar with the political climate here, you might have guessed what these exceptions are. Yes, constitutional amendments are still Parliament's prerogative, and of course all those touchy things like the Muslim religion, Malay rulers, citizenship provisions, and the special position of the Malay race are all off-limits to the executive.

Nevertheless, aside from that, the Prime Minister can actually make pretty much any law he wants. And even though theoretically there are limits, such as those preventing the executive from amending the Constitution at will, even these can seem to be overriden easily.

For example, in PP v Khong Teng Khen, the Federal Court held that an ordinance the King had promulgated (the King acts on the PM's advice, so this was basically an ordinance promulgated by the PM) had granted the King power to make law even when Parliament was sitting — in direct contravention of the Constitution, which states that the King may only make ordinances when Parliament is not sitting.

There are of course some other theoretical Constitutional checks on this legislative power granted to the executive. Ostensibly, laws made by the executive expire after a certain period of time. However, as these laws can be renewed indefinitely, this is about as meaningful a check on executive power as the Internal Security Act's requirement that detention orders lapse after a certain period unless renewed by the Home Minister.

Of course, the question that may be on your mind is, if the government has so much power under a state of emergency, why on earth are we still under emergency rule? Well, apparently the fellows who drafted the Constitution forgot to account for two things.

The first was that they did not explicitly specify when a state of emergency would lapse. The second was that they assumed that the courts would have a backbone and brain of their own, and use some common sense and realise that there's no use in a government promulgating "emergency regulations" half a decade after the racial rioting that triggered the emergency proclamation.

Because of these mistakes, the courts found a loophole and tore it wide open for the executive to use and apply. The result is that today, we are legally living under emergency rule, and our Parliament is a sham.

I used to think that those who compared us to tinpot dictatorships and banana republics had gone off the deep end. But when people like Rais Yatim (currently a member of the Cabinet) devote an entire PhD thesis to cataloguing the travesties of justice that have ensued because of our sham emergency rule, it's difficult not to wonder if these insane people are not as mad as they seem at first.

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Infernal Ramblings is a Malaysian website focusing on current events and sociopolitical issues. Its articles run the gamut from economics to society to education.

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