Is The Government And The Speakers Of Both Houses Ready To Let Parliament Annul The Emergency Ordinances?

THE first Emergency Ordinance promulgated under this state of Emergency- widely known as Ordinance 1, was put into force on the 11th January 2021. It was subsequently amended with the addition of two new subsections through ordinance P.U. (A) 151 promulgated on the 25th March as follows.

P.U. (A) 151

“Temporary financial provisions”

10a. Notwithstanding any provision in the Federal Constitution and the Constitution of a State relating to expenditure charged on the Federal Consolidated Fund or the Consolidated Fund of a State, any supplementary expenditure requiring an Act or Enactment or resolution of the House of Representatives or Legislative Assembly of a State, and withdrawal from any of the Consolidated Funds, for so long as the emergency is in force, any such expenditure or withdrawal from the Federal Consolidated Fund or the Consolidated Fund of a State may be made with the approval of the Treasury or the Menteri Besar or Chief Minister of a State, as the case may be in such manner as may be provided by any written law or any Treasury Instructions or Treasury Circulars relating thereto for the time being in force.

Non-application of procedures for application of moneys raised or received

10b. For so long as the emergency is in force

(a) the provision relating to the application of moneys provided in paragraph 4(b) of the Government Funding Act 1983 [Act 275]; and
(b) the provision relating to the application of moneys provided in paragraph 2(2)(b) of the Treasury Bills (Local) Act 1946 [Act 188], shall have no effect.”

This amendment, in effect gives the Treasury, Chief Ministers and Menteri Besars power to circumvent parliamentary scrutiny and passage, as well as bypass normal procedures to withdraw and utilise public funds. Meaning, government expenditures/budgets can be passed without an Act of parliament affording absolute discretion to those in power, namely the government.

Some are of the view that so long as the Emergency ceases on the 1st of August 2021, budget 2022, which during normal times would be tabled in November 2021, would require the passage of a set of normally arduous but robust legislative processes.

In other words, the comatosed parliamentary democracy in our Nation would be reawakened. The embattled government that has been suffering a crisis of confidence and legitimacy of epic proportions will be put through a much deserved and long awaited litmus test.

For those who were preparing to celebrate seeing parliament spring back to its former glory, taking the government to task on the current situation, and maybe test its legitimacy through budget 2022; I would urge for all to halt your premature celebrations. There maybe a huge proverbial spanner in the works.

The Not So Visible Problem

Many assume that as soon as the Emergency ceases to be in force, it also automatically means that ordinances promulgated under it would also automatically cease to be in force. For example, it is assumed that on the 1st of August, when the state of Emergency is lifted finally, the “temporary financial provisions” and “Non-application of procedures for application of moneys raised or received” provided in the amended Ordinance 1 will no longer be applicable. But that would be a mistaken assumption according to the law- the highest law of the land in fact.

The current State of Emergency was proclaimed under the auspices of Article 150 of the Federal Constitution, which sub-section 2B allows for the promulgation of these Ordinances. All matters pursuant to a State of Emergency is governed by the entire Article 150 of the Federal Constitution. It pains me to point out that article 150 clause 7 states the following;

(7) At the expiration of a period of six months beginning with the date on which a Proclamation of Emergency ceases to be in force, any ordinance promulgated in pursuance of the Proclamation and, to the extent that it could not have been validly made but for this Article any law made while the Proclamation was in force, shall cease to have effect, except as to things done or omitted to be done before the expiration of that period.

This means that all ordinances promulgated under the emergency- including the aforementioned power given to the Treasury, CMs and MBs to circumvent legislative processes to pass a budget- will still be in force for six months after the Emergency is lifted.

This shows that the PN government had planned to circumvent the Budget legislative processes from the offset. If not so, the ordinance could have easily included a caveat to exempt 150(7) from being applicable to the amendment.

As a matter of fact, all ordinances promulgated so far ie. the Fake New Ordinance, the KWAN ordinance, and of course government’s power to commandeer assets laid out in Ordinance 1 will still be in force for 6 months after 1st of August. Essentially, the only substantial difference after 1st of August, would be that the government cannot promulgate anymore new ordinances. It would be no surprise if the PN government gets busy legislating all sorts of ‘beneficial ordinances’ in the coming month or so.

One thing is for sure, a majority testing ‘money bill’ will most definitely not see the light of day in the Parliament.

The Remedy

So, what would be the remedy to recover Parliament to its rightful state, or at least its right to scrutinise budget 2022? The answer is actually also found in Article 150 itself, albeit not quite a likely outcome to achieve.

(3) A Proclamation of Emergency and any ordinance promulgated under Clause (2B) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance, but without prejudice to anything previously done by virtue thereof or to the power of the Yang di-Pertuan Agong to issue a new Proclamation under Clause (1) or promulgate any ordinance under Clause (2B).

If and when Parliament is convened again and there is a motion tabled and passed in both the upper and lower houses of Parliament, to revoke the State of Emergency and the ordinances, then the government will be compelled to table a budget to the August House. Then again, such a motion will have to come from the government, as Speakers of both houses are highly unlikely to put anything not approved by the government on the order sheet of the Houses. Whether or not this will play out, would be entirely reliant on either the Speakers to exercise their discretion and power, or the government to have a miraculous change of heart. Both are highly unlikely.

The pertinent questions that must be answered here and now, which must be answered by the government and the Speaker of both the upper and the lower houses are;

Is the government, especially the Prime Minister and the Law Minister, going to table a motion to both houses to revoke and annul the state of Emergency and its ordinances in accordance to article 150(3) of the Federal Constitution, as the first substantive order of business when Parliament reconvenes?

Will the speakers of both houses, assuming the government does not table a government motion, allow for motions of the same effect tabled by non executive branch members- government supporting or otherwise- to be tabled for the consideration of the august houses?

Are non executive branch members of both houses prepared to table such a motion, to ensure that Parliament will not be rendered a lame duck for 6 months after the ceasure of the state of Emergency?

The Challenges And Hurdles

It is not yet the time for Malaysians to celebrate the revival of democracy. It may not happen for a while yet. In the last several days, many clearly orchestrated ‘posturing’ and ‘framing’ statements that have come from the Attorney General and several other PN academic mercenaries, trying to sell the narrative that the YDPA can and must only decide and act based on government advice.

This could mean that the PN government may ignore His Majesty the YDPA and their Royal Highness the Malay Rulers’ decree to convene Parliament whether it be ‘immediately’ or ‘as soon as possible’. There may even be a government advice to extend the state of Emergency beyond 1st of August, which PN is framing as incumbent upon His Majesty to follow.

Whether or not that would be a treasonous act on the part of the government in the eye of the law, is up to judges and the public to decide, if and when it happens. But one thing is for sure; our Parliament that been wrongfully sent into an induced coma by the PN government may not be out of the woods yet. Without the commitment by those who hold the reins of power agreeing to annulling and revoking the Emergency and its Ordinances, the unshackling and rehabilitation of Parliamentary democracy is still as uncertain as it is now

Indeed, there are some who interpret Section 10A of Ordinance 1 as only applicable to any “supplementary budget”, meaning Budget 2022 cannot and will not escape the August Houses of Parliament- it is open to interpretation. But then again, if the government was to expand on the term supplementary to include budget 2022 and justify it under the Ordinance, could it be challenged in court? And if challenged in court, will it be thrown out based on Article 150(8.b.iv)?

Notwithstanding anything in this Constitution –
(b) no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of-
(iv) the continuation in force of any such ordinance.

(Disclaimer: sincere wish to be proven wrong)

Maybe none of these will happen. Maybe this is just a case of overthinking and paranoia as a result of this PN government’s repeated cases of ‘in fraudem legis’-(in fraud of the law) where it has evaded, circumvented and even abused the law to pervert its proceeding. Examples of this range from its very formation based on fraudulent claims of a majority to its arguably misleading advise to the YDPA into proclaiming this state of Emergency under the pretense of the Pandemic, when in fact it was just to avert its own political emergency. The PN government has proven it is not incapable of the most treacherous of acts for the sake of power.

I sincerely wish I would be proven wrong, that none of what I have narrated will not be realised. But if this alarm bell is not rung, so for pre-emptive measures and actions to be taken, we as a nation may once again be tricked into another shameful act of democratic perversion and institutional molestation by these ruthless, power crazy, wild political animals.

MPs, its now over to you all.