On 12 January 2021, the Prime Minister of Malaysia announced that His Majesty the Yang di-Pertuan Agong (‘YDPA
’) had exercised his powers under Clause (1) of Article 150 of the Federal Constitution to issue a Proclamation of Emergency
’) throughout Malaysia from 11 January 2021 to 1 August 2021. This came a day after the Prime Minister had announced the imposition of stricter movement control measures in the states that were most badly affected by the outbreak of the Coronavirus Disease 2019 (‘Covid-19
Two days later, on 14 January 2021, the Emergency (Essential Powers) Ordinance 2021
’) was gazetted.
This Alert will explain the main features of the Ordinance.
Reason for the Proclamation
As stated in the Proclamation, the emergency was proclaimed as the YDPA was satisfied that a grave emergency exists whereby the security, economic life and public order in Malaysia was being threatened by reason of the Covid-19 epidemic.
Independent special committee
Section 2 of the Ordinance provides for the establishment of an independent special committee (‘Committee
’) to advise the YDPA on the continuing existence of the emergency arising from the Covid-19 epidemic. The members of the Committee are to be appointed by the YDPA.
According to a statement issued by the Comptroller of the Royal Household, the Committee will comprise Members of Parliament representing the Government and the opposition, health experts and related experts and will advise the YDPA whether the state of emergency is to be ended before 1 August 2021.
Powers to take temporary possession of properties
While the emergency remains in force, the YDPA or any person authorised by the YDPA (‘authorised person
’) may take temporary possession of all or any part of any land, building or movable property (‘relevant property
’) and may give such directions as may appear to him necessary or expedient in connection with the taking of the relevant property. The relevant property may be used by or under the authority of the YDPA or an authorised person for such purpose, and in such manner, as the YDPA or an authorised person thinks expedient.
Demand for resources
For so long as the emergency is in force, the YDPA or an authorised person may demand any resources (including human resources, facilities, utilities, assets and the controller or manager of such resources) to be utilised for any purpose the YDPA or an authorised person deems necessary. The YDPA or an authorised person may give any direction in relation to the utilisation, management and control of the resources to whom the resources are demanded.
Compensation for any relevant property taken, or resources demanded or utilised, under the Ordinance is to be assessed by an authorised person, whose assessment shall be final and not be challenged or called to question in any court on any ground.
Any person who contravenes section 3 (taking temporary possession of any relevant property
) or section 4 (demand for use of resources
) of the Ordinance or fails to comply with a demand or direction made under section 3 or section 4 by the YDPA or an authorised person commits an offence and shall, on conviction, be liable to a fine not exceeding RM5 million or to imprisonment for a term not exceeding 10 years or to both.
Where a person who commits an offence under any of the above-referred provisions is a body of persons, whether incorporated or not (‘entity
’), a person who at the time when the offence was committed was a director, compliance officer, partner, manager, secretary or other similar officer of the entity or was purporting to act in the capacity or was in any manner or to any extent responsible for the management of any affairs of the entity or was assisting in the management of the entity may be charged jointly and severally with the entity and such person shall be deemed guilty of the offence if the entity is convicted of the offence, unless the person proves that the offence was committed without his knowledge, consent or connivance and that he had exercised all reasonable precautions and exercised due diligence to prevent the commission of the offence.
Additional powers of the armed forces
For so long as the emergency is in force, the YDPA or an authorised person may direct that the armed forces shall have all powers of a police officer of whatever rank as provided under the Criminal Procedure Code, in addition to their powers under the Armed Forces Act 1972.
Directions under Prevention and Control of Infectious Diseases Act 1988
The YDPA or an authorised person may, for so long as the emergency remains in force, appoint any person to issue directions for treatment, immunisation, isolation, observation or surveillance under sections 11(3)(a) and 11(3)(b) of the Prevention and Control of Infectious Diseases Act 1988 (‘PCID Act
For so long as the emergency is in force, the YDPA or an authorised person may exempt a healthcare professional under the Medical Act 1971, Dental Act 1971, Registration of Pharmacists Act 1951, Allied Health Professions Act 2016, Medical Assistants (Registration) Act 1977, Nurses Act 1950, Midwives Act 1966, Optical Act 1991 or Estate Hospital Assistants (Registration) Act 1965 from the requirement to comply with the place of practice specified in his annual practising certificate or its equivalent.
Ouster of court’s jurisdiction
The Ordinance provides that no action, suit, prosecution or other proceeding shall lie or be brought or maintained in any court against the Government, any public officer or any person appointed under the Ordinance to issue directions under the PCID Act, in respect of any act, neglect or default done or omitted by it or him in good faith in carrying out the provisions in the Ordinance.
Executive and legislative powers
For so long as the emergency is in force, the executive authority conferred on the Prime Minister, the Cabinet, the Menteri Besar or Chief Minister, and the State Executive Council or State Cabinet (in each case existing immediately prior to the Proclamation), or any other person who has been conferred the executive powers under Federal law or state law, as the case may be, shall continue to be exercised by that person.
The power to make subsidiary legislation under Federal laws and State laws shall continue to be exercised by the persons so authorised by such laws for the duration of the emergency.
Election of Parliament
Vacancies in the Senate and in the House of Representatives of the Malaysian Parliament shall not be filled while the emergency remains in force. Instead, such vacancies shall be filled within 60 days after the Proclamation is annulled.
A general election shall be held and the meeting of Parliament shall be summoned on the dates as the YDPA thinks appropriate.
Election of State Legislative Assembly
The provisions in the Federal Constitution, Constitution of any State and any State law requiring an election to a State Legislative Assembly shall have no effect while the emergency is in force. An election for any State Legislative Assembly shall be held on a date as the YDPA thinks appropriate after consultation with the Ruler or Yang di-Pertua Negeri of the State concerned.
For so long as the emergency is in force, the provisions in the Federal Constitution relating to the summoning, proroguing and dissolution of Parliament shall not have effect and Parliament shall be summoned, prorogued and dissolved on a date as the YDPA thinks appropriate.
Any meeting of Parliament which has been summoned before the coming into operation of the Ordinance but has not been held is cancelled.
Sitting of State Legislative Assembly
The provisions relating to the summoning, proroguing and dissolution of a State Legislative Assembly in the Eighth Schedule to the Federal Constitution, Constitution of any State and any State law shall not have effect whilst the emergency is in force, and a State Legislative Assembly shall be summoned, prorogued and dissolved on a date as the YDPA thinks appropriate after consultation with the Ruler or Yang di-Pertua Negeri of the State concerned.
Any meeting of a State Legislative Assembly which has been summoned before the coming into operation of the Ordinance but has not been held is cancelled.
Power to make regulations
For so long as the emergency is in force, the YDPA may make regulations as may be necessary or expedient for the purposes of carrying into effect the provisions of the Ordinance.
Powers under other written laws unaffected
The powers under the Ordinance are in addition to, and not in derogation of, the powers given by or under any other written law in force.
The provisions of the Ordinance shall prevail in the event of any conflict or inconsistency between the provisions of the Ordinance and any other written law.
The proclamation of a nationwide emergency came as a shock to many Malaysians especially in light of the fact that the YDPA had declined a similar request by the Prime Minister on 25 October 20201
. Nevertheless, the circumstances have changed significantly since then as evidenced by the substantial increase in the number of new Covid-19 cases in the country and the admission by the Prime Minister that “Our healthcare system is at breaking point
due to the increased number of new cases.
The Ordinance confers wide powers on the Government but such powers are not unbridled and ought to be exercised only in furtherance of the reason for which the emergency was proclaimed, that is, to combat and eliminate the threat posed to the security, economic life and public order in the country by the Covid-19 epidemic.
It is submitted that the provision in the Ordinance that purports to absolve the Government and any public officer from liability for any acts or omissions in carrying out the provisions in the Ordinance and precludes the filing of court proceedings in respect of such matters is not a complete ouster of the courts’ power to review such acts or omissions. This provision only operates when the Government or a public officer is able to prove to the satisfaction of the courts that the impugned acts or omissions have been carried out by it or him in good faith. Thus, the courts remain the final bastion against the abuse of the powers conferred under the Ordinance.
Alert prepared by Kok Chee Kheong (Partner) of Skrine