Draft:State of Emergency in Malaysia

State of Emergency (Malay: Darurat), or officially known as Proclamation of Emergency (Malay: Proklamasi Darurat) under Malaysian Constitution, is a state in which when the country or any part of it is faced with grave emergency or crisis, the Federal Government and the Yang di-Pertuan Agong will be empowered to wield extraordinary powers to administrate the country, and bypassing certain procedures or restrictions set out by the law or Constitution.

Under Article 150 (1) of the Federal Constitution of Malaysia, if the Yang di-Pertuan Agong is statisfy that a grave emergency exists whereby the security, economic life, or the public order of Malaysia or any part thereof is threatened and immediate actions are required to be taken, he may issue a Proclamation of Emergency.

Once a Proclamation of Emergency has been declared, the government can enact laws without the approval of Parliament, and may also make any laws and regulations that are inconsistent with the Federal Constitution, such as laws that curtail fundamental rights and liberties, or remove mechanism of check and balance imposed on the government. Therefore, some lawyers or legal experts opined that when a state of emergency is declared, the Constitution is, in essence, suspended.

In the history of Malaysia, State of Emergency has been used to declare curfew, suspend Parliament, freeze elections, search and arrest without warrant, authorise preventive dentention, detention without trial, seizure of private properties, prohibit mass assembly, restrict public gathering, and censor the media.

After the independence of Malaysia in 1957, not including the Malayan Emergency declared by the British Malaya government in 1948, there have been a total of eight Proclamation of Emergency declared in the history of Malaysia.

The State of Emergency was declared in 1964 during the Indonesia-Malaysia Confrontation; in 1966 during the Sarawak constitutional crisis; in 1969 during the May 13th race riot; and in 1977 during the Kelantan Emergency. Four emergency were also declared in 2021 and 2022 during the COVID-19 pandemic to control the spread of the virus, and to suspend elections and Parliament sittings.

Proclamation of Emergency
Proclamation of Emergency, or commonly known as State of Emergency, is issued by the Yang di-Pertuan Agong to declare that an emergency exists in the country, and in consequence allow Emergency Ordinance or Emergency Act to be made by him or the Parliament, respectively. After the Proclamation is being issued, it has to be tabled to both Houses of Parliament as per Article 150 (3). If the Parliament passed a resolution to annul the Proclamation, it will cease to have effect immediately. However, the Yang di-Pertuan Agong may also revoke the Proclamation by himself without going through the Parliament.

For Proclamation of Emergency, there is no provision in the Constitution indicate that it will automatically expire after a certain period has pass, or should the Parliament be convened and make decision on the emergency within a specified period, like in the case in other countries such as UK where the state of emergency will automatically ends after a certain period. Therefore, in theory, if the Yang di-Pertuan Agong did not revoke the Proclamation, or the Parliament did not pass a resolution to annul the said Proclamation, the Emergency can remain in force indefinitely.

Emergency Ordinance
When a Proclamation of Emergency is in force, and if both Houses of Parliament (Dewan Rakyat and Dewan Negara) are not sitting concurrently, an Emergency Ordinance can be made by the Yang di-Pertuan Agong. But if both Houses of Parliament is sitting concurrently during a state of emergency, then the Yang di-Pertuan Agong lose the power to make an Emergency Ordinance.

Similar to the Proclamation of Emergency, all Emergency Ordinance made will have to be tabled to both Houses of Parliament according to Article 150 (3). If a resolution is passed in both Houses of Parliament to annul the Ordinance, then the said Ordinance will cease to have effect immediately.

However, if the Parliament or the Yang di-Pertuan Agong only annul or revoke the Proclamation of Emergency, but did not directly annul or revoke the Ordinance itself, then the Emergency Ordinance will continue to remain in force for another 6 months after the date in which the Proclamation of Emergency has cease to have effect. After the 6 months period, the Ordinance will automatically expire and no longer have effect.

Emergency Act
Emergency Act is an Act of Parliament made by the Parliament during an active Proclamation of Emergency and its preamble will specifically recites that this Act is required by reason of emergency and is made under such Emergency Proclamation.

An Emergency Act will not expire even after the Proclamation is revoked or annulled, as no provisions provided in the Constitution indicate that it has an automatic expiry period. Unless stated by the Act itself that it will expired together with the Emergency Proclamation, or repealed by the Parliament, it will remain in force indefinitely similar to any other ordinary Act of Parliament.

Yang di-Pertuan Agong to act on advice vs. Royal prerogative
There's no general consensus among legal experts on whether the Agong has to follow the advice given by the Cabinet, or he has the sole discretion to decide, when coming to the topics of declaring a state of emergency or promulgate an Emergency Ordinance.

There are mainly two camps of thought on Yang di-Pertuan Agong's emergency powers, one group argue that he has to follow and abide to the advice given by the Cabinet or a Minister as per Article 40 (1) of the Constitution; while another group argue that the King has sole discretion to decide on this matter as the wordings and language used in Article 150 (1) falls within the discrestionary powers given by Article 40 (2).

Article 150 (1):"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."Article 40 (1):"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 acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; [...]"Article 40 (2): The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say:

(a) the appointment of a Prime Minister;

[...]

and in any other case mentioned in this Constitution.