The “Emergency (Essential Powers) Ordinance 2021” was gazetted, yesterday, in the Attorney-General Chambers’ website “Federal Gazette”. Writer Tai Zee Kin shares with us his thoughts in this ‘layman’ version.
As mentioned in my previous posting, the declaration of State of Emergency (SoE) is one thing, it merely gives power to the Government to legislate Ordinances under the name of His Majesty, the Yang Di Pertuan Agong. What transpires after that would be the actual gazette of the Emergency Ordinances, which spells out “what power” that the Federal Government is seeking from the Palace during the period of State of Emergency. Please refer to the following URL for the actual Gazette.
Here are some salient points for your reading pleasure. A TL-DR (Too Long – Don’t Read Summary) and for the lay person:
- Government can acquire property/land/premise/resources with ‘unchallengeable compensation’. Resources can mean human resources too.
- Government can appoint authorised person to give direction on treatment/immunisation etc. This person is immune to law suits or legal proceedings.
- Army has power as Police under Criminal Procedure Code.
- Failure to comply with Government’s demand or direction: Not more than five million (RM) fine, or not more than 10 years in jail
- PM, Cabinet and State EXCO carry on duties as usual
- Parliament won’t be sitting as per the law, but Tuanku may call for a sitting whenever required
- State and General Elections won’t be held during emergency as per the law, but Tuanku/Sultans/State YDPs may call for it.
Some Pertinent Q&As:
- When is this ordinance effectively coming into force? 11.1.2021 is the date when this ordinance is deemed to be effective and came in force.
- Appointment of “Independent Special Committee” by Tuanku, to advise the Palace on whether or not the circumstances that gave rise to the need for Emergency as per the Federal Constitution and Emergency Act continue, or cease to exist (if latter, Tuanku can exercise his prerogative to end the Emergency earlier than the declared timeframe).
- Acquisition of Land, Building, or Movable Property “TEMPORARILY”.- The Ordinance allows Government, to temporarily acquire land, building, or movable property regardless of any law: Act of Parliament/Federal Constitution provisions/regulations/ instruments that otherwise prohibits (this ‘contravention’ is allowed, by the Federal Constitution in Article 150).
- “Demand” to use resources – Government under this ordinance can demand to use resources (even those under private ownership) under Tuanku’s name, regardless whether there is any existing law prohibiting so. “Resources” here include: – Human Resources (I think, if government wants to use private hospital’s specialists for COVID-19 purpose, it can demand so). – Facilities (I am of the opinion that if government wants to use your Condo’s Multi Purpose Hall for ‘mass vaccine inoculation’, it can demand as such, and your JMB will have to agree). – Utilities and Assets (I believe if the government, when giving mass testing of COVID-19, requires the use of your water, electricity, air-conditioner of your condo’s multi purpose hall, your JMB must agree).
- Compensation – If government is to temporarily acquire your land, building, movable properties to be used, government will pay you compensation for it, but the amount will be determined by the government and cannot be challenged.
- Government can APPOINT anyone to ISSUE direction to anyone for – treatment, immunisation, isolation, observation and surveillance. Under this ordinance, the government can APPOINT anyone to give this person the POWER to direct citizens to attend treatment, immunisation (vaccine), isolation/observation/surveillance (quarantine as relevant). The person appointed, shall have the same power as an “authorised officer” under the prevention and control of infectious diseases Act 1988.
- Armed Forces shall have ‘Police power’. Remember, last year’s MCO when you saw the Military personnel working together with the Police Force when enforcing the rules of the MCO? They had to work in pairs because Military has no rights accorded to police against civilians. They were merely assisting the police. However, under this Ordinance, the Military/Armed forces now has “Police Power” ie, to arrest civilians, etc. This power is given to the Army ‘on top’ of their existing power under the Armed Forces Act (usually used to deal with foreign invaders). The power given to the Army are Police Power confined within the Criminal Procedure Code (different from the Police Act).
- Power to ‘exempt’ – Under this ordinance the government can exempt a Medical Practitioner (Doctor) from complying with his/her obligation under his/her annual practising certificate in regards to “address of the principle place of practice.” I think this could mean that a person who practices in Selangor can be transferred to, say, Sabah even if this contravenes the term of his/her practising certificate which only allows him/her to practice in Malaya.
- Offences (please take EXTRA note on this)- If one disobeys Section 3/4 of the Ordinance (to allow government temporary acquisition and use of land, building, immovable properties, and resources), he/she can be punished with a fine of not more than RM5 million or imprisonment for not more than 10 years, or both. If the non-obeyance was from a body or corporation (society, company, partnership, enterprises etc), the owner/director/partner/Society officer etc, or any person who is deemed as ‘management’ (I think senior), the punishment for these people is the same as individual punishment above.
- You cannot challenge or sue or prosecute or initiate any suit against the person authorised under S6 of this ordinance (refer to Point 6 of this post).
- Prime Minister, Cabinet Ministers and State Exco/Menteri Besars/Chief Ministers carry on their work as usual. They can continue to make bylaws/regulations like they usually do.
- No By-election for vacant seats – this is to supercede provisions from Article 54 of the Constitution which prescribes the need for a by-election to be held within 60 days upon the vacancy of a seat. Decisions made by the election commission as to the by-elections are annulled and revoked by this ordinance.
- “No General Election?”- (General Election cannot be held within the time period according to Article 55 of the Federal Constitution, even if Parliament is dissolved). Under the Emergency Period, when you read Article 55 (3) of the federal constitution, inside your mind, STRIKE OFF the part from “for FIVE years from the date of its first meeting and shall then stand dissolved”. Treat this line as deleted. It means, until August 2021, the Article 55 shall be superceded by the Emergency Ordinance (which is allowed). Also, strike out Article 55 (4)’s part, where it says General Election must be done within 60 days after dissolution, and Parliament must reconvene 120 days after the date. This part does not apply under the Emergency Period.
- SAFEGUARDS – “Tuanku can still decide on General Election/Dissolution of Parliament under Article 55 (5)”. Tuanku can decide on GE, Dissolution, and Reconvening of Parliament still, even under the Emergency, on date, and under circumstances Tuanku deems appropriate.
- State Assembly – Provisions in the Federal Constitution and State laws “regarding” state elections shall have NO EFFECT under the Emergency period.
- Parliament Sitting – Provisions in the Constitution about summoning/delaying (prorogue) and dissolution of Parliament shall have no effect. Instead, the Ordinance transfers the power of such provisions to Tuanku’s discretion, which means Tuanku can decide on the summoning/delaying (prorogue)/dissolution of Parliament based on His Majesty’s judgment (appropriate).
- State Assembly Sitting – same as Parliamentary sitting – at Sultan’s and Yang Dipertua Negeri’s discretion and judgment.
- Tuanku/Government can Continue to make laws (promulgate ordinances) for the purpose of emergency, under this law
- This Ordinance gives extra powers to government on top of existing laws but it doesn’t take away any power the government already has under other laws.
- When there are inconsistencies among Constitutional provisions, Codes, Statutes, Regulations, Case Laws or any law with the provisions of this Ordinance, this Ordinance shall prevail. – New Malaysia Herald
About the Writer: Tai Zee Kin works as Digital Media practitioner – he lives and breathe newsfeeds. When he has the opportunity to avert his gaze from devices, he focuses in manning his small garden, meditate, and workout. He thinks faster than he can write or speak, which makes him a bad writter and bad orator. He writes for New Malaysia Herald.