2021 has been off to a rough start. As COVID-19 continues to topple the healthcare system and strip the nation of its livelihood, the Yang di-Pertuan Agong (YDPA) assented to the ruling government’s request for a proclamation of a state of emergency over the nation that will be effective up to August. This proclamation is accompanied by the Emergency (Essential Powers) Ordinance 2021 (“Emergency Ordinance”), which has since been gazetted and in force. As citizens of Malaysia, it is important for us to familiarise ourselves with the provisions of said Ordinance and the manner in which it empowers the Government for the remainder of this state of emergency.
According to Article 150(2B) of the Federal Constitution, emergency ordinances are authoritative decrees that the YDPA, through the advice of the Prime Minister, can promulgate in the absence of the permission of Parliament. These laws will be given the same force and effect similar to an act enacted by Parliament. Furthermore, subarticle 8 under the same Article shields the Government from legal repercussions by stripping the courts of any jurisdiction to challenge the Government’s decision on the emergency and ordinances promulgated. Consequently, it comes as no surprise that the people have since expressed their concerns over the unfettered and dictatorial character of the Emergency Ordinance.
Echoing Article 150(8) of the Federal Constitution, Section 10 of the Emergency Ordinance stipulates that no legal action can be instigated against the Government or agents appointed by the Government. However, there is a silver lining – immunity will only apply to acts that have been done or omitted in good faith; the Government remains vulnerable to an action when it can be proven that they were negligent in performing their duties. The Government must therefore continue to diligently uphold their standards with respect to ensuring public safety during these times.
Another avenue of concern stems from the shift in separation of powers. As Section 10 comes into force, the judiciary is stripped of its essential role of providing check and balance by holding the executive accountable. The cases of Indira Gandhi and Maria Chin Abudullah have shown the judiciary’s willingness to scrutinize and review the actions of the executive, a power that will be suppressed for as long as this state of emergency lasts.
Sections 3 and 4 of the Emergency Ordinance empowers the Government to take temporary possession of any land, building, or movable property as well as demand for any resources to be utilised for purposes that are deemed necessary. In the context of the latter, resources would include human resources, facilities, utilities and assets, and the controller or manager of such human resources, facilities, utilities and assets. These provisions allow the Government to seize properties and resources that are privately owned so far as it appears to be expedient for them to do so. Concerns have been raised over the existence of these provisions as Prime Minister Tan Sri Muhyiddin Yassin has said that the healthcare system is at its breaking point. Parties that do not comply with these sections would be liable to a fine not exceeding five million ringgit or to imprisonment for a term not exceeding ten years or to both, pursuant to Section 9 of the same Ordinance.
The Government has been given the power to equip the Health Ministry through the appointment of personnel to issue directions for treatment, immunization, isolation, observation or surveillance under Section 11(3)(a) and (b) of the Prevention and Control of Infectious Diseases Act 1988. With the announcement of an agreement between companies such as Pfizer and BioNTech and the Malaysian Government for the importation of COVID-19 vaccines, this section would allow for the Government to empower private health workers in the vaccine distribution and administration that is to come. On the other hand, the Government may scheme to deploy private health workers to other districts or states that lack manpower.
Throughout the Movement Control Order (MCO), we have observed the Government mobilizing the military to assist the police force due to a lack of manpower. This will continue to be the case as the Emergency Ordinance empowers the Government to vest within the armed forces all the powers of a police officer of whatever rank as provided under the Criminal Procedure Code.
As the executive continues to operate at both the federal and state level (per Section 11), the Parliament and all state legislative assemblies have been ordered to no longer sit for the time being (Sections 14 & 15). Similar to the judiciary, the legislative will cease to command the ability to hold the executive accountable. As a result, the executive would be free to enact whatever law it deems necessary or expedient, without having to worry about scrutiny or dissent from the other branches of government.
Along with Section 11 are provisions voiding the requirements to arrange for elections in Parliament and State Legislative Assemblies (Sections 12 & 13). These provisions have been criticised by many as a conspiracy orchestrated by the ruling government to retain its power, as they have been alleged to only hold a slim majority in Parliament. With that being said, few have fully recovered from the aftermath of the infamous Langkah Sheraton less than a year ago. As Malaysia gradually builds up to yet another political crisis, all while COVID-19 runs rampant, the effects of Sections 12 and 13 can also be understood as the Government’s attempt to perform damage control before the nation plunges into more chaos.
Malaysia has once again entered unprecedented times. As the Emergency Ordinance takes effect, the fundamental liberties of the people will be set aside in exchange for additional powers vested in the executive. Although the Prime Minister has defended this proclamation of emergency (assented by the YDPA by his request nonetheless) as an attempt to combat COVID-19, many have viewed it as unconstitutional and cannot connect the dots between a public health and safety crisis and allocating powers to the executive. Nevertheless, one thing is for sure: the Emergency Ordinance is an unprecedented measure to combat the pandemic. As rakyats of Malaysia, we must do our part to combat the virus and to flatten the curve.
Only together, will we prevail!
Published on 22 January 2021