MP SPEAKS | Covid-19 cannot be defeated by laws lacking legitimacy

MP SPEAKS | Dewan Rakyat Deputy Speaker Azalina Othman Said has given her reasons for rejecting a request from an Umno MP to allow for a special parliamentary sitting to debate the emergency proclamation.

Her party Umno has called on its MPs to request for a parliamentary session to table the Proclamation of Emergency and the Emergency Ordinance 2021 in accordance with the requirements of Article 150(3) of the Federal Constitution.

In disagreeing, Azalina relied on Article 150(8) of the Federal Constitution, which provides that the satisfaction of the Yang di-Pertuan Agong as to the existence of a grave emergency is final and conclusive and shall not be challenged or called in question in any court on any grounds.

She has failed to consider that it is a mandatory requirement under Article 150(3) of the Federal Constitution for the Proclamation of Emergency and the Emergency Ordinance 2021 to be tabled before both Houses of Parliament. Both Houses are expressly granted powers under the Federal Constitution to pass resolutions annulling such Proclamation of Emergency and Emergency Ordinance.

Therefore, the request to call for a parliamentary session for the purpose of having the Proclamation of Emergency and the Emergency Ordinance to be tabled is part of the constitutional scheme for an emergency.

Article 150(8) does not apply because the parliamentary sitting is not a challenge in court. The constitutional scheme in fact envisages for Parliament to sit and make laws during the duration of an emergency. Article 150(5) provides that while a proclamation of emergency is in force, Parliament may make laws with respect to any matter, if it appears to Parliament that the law is required by reason of the emergency.

Parliament has held sittings during the existence of several proclamations of emergency. There is a misconception that whenever an emergency is declared, Parliament is prorogued or dissolved. This is not correct. Professor Shad Saleem Faruqi has pointed out that when the Sarawak emergency was declared, Parliament was summoned to meet for three days.

When the Kelantan emergency was declared in 1977, Parliament was sitting. In 1969, Parliament was dissolved for the general election and was reconvened in 1971. Shad Saleem said that since 1964, the country has been under a constant state of emergency. Yet Parliament has continued to meet.

Under the constitutional scheme, whether it is normal times or emergency, Parliament must continue to perform its constitutional function.

Article 150(8) is an ouster clause. This article was inserted as part of several amendments to Article 150 under the Federal Constitution (Amendment) Act 1981 (Act A514). An ouster is invalid and unconstitutional if it violates the basic structure of the constitution. The Federal Constitution is a Westminster model constitution, which is based on the system of parliamentary democracy.

There are at least three essential elements that form the basic structure of a Westminster model constitution. They are the doctrine of separation of powers, the rule of law and an independent judiciary. The Federal Court has accepted the basic structure doctrine in cases such as Sivarasa Rasiah v Badan Peguam Malaysia [2010] 2 MLJ 333, Semenyih Jaya Sdn Bhd v Land Administrator of the District of Hulu Langat [2017] 3 MLJ 561 FC and Indira Gandhi v The Director of Islamic Affairs Perak [2018] 1 MLJ 545 FC.

The Federal Court in Indira Gandhi's case made, among others, the following rulings:

• That the principle of separation of powers is part of the basic structure of the Federal Constitution;
• The power of judicial review is an essential feature of the basic structure of the Constitution;
• The features in the basic structure of the constitution cannot be abrogated by Parliament by way of a constitutional amendment;
• The power of the Judiciary to ensure the legality of executive action is consistent with its constitutional role in a framework based on the separation of power, which forms the basic structure of the Constitution; and,
• Any attempt by Parliament to oust or exclude the power of judicial review is ineffective. It follows that ouster clauses are unconstitutional and void.

The Federal Court in the recent decision of Maria Chin Abdullah v Ketua Pengarah Imigresen [2021] 1 LNS 7 has held the ouster clause, in that case, to be valid. However, in the light of the earlier Federal Court judgments, the constitutionality of Article 150(8) is not a foregone conclusion.

In refusing to call for a special parliamentary sitting, Azalina offered alternatives such as the formation of a bipartisan council and for the people to bring their complaints to Umno ministers.

It is unfortunate that Azalina has failed to consider the important role Parliament can play in the fight against the pandemic and to tackle the economic crisis. Any governmental order, policy or programme to battle Covid-19 which does not undergo parliamentary scrutiny and obtain the required approval does not enjoy the legitimacy and public acceptance required for its successful implementation.

When rules do not benefit the people, they will want to know whether there was due diligence, transparency or accountability. In complying with SOPs, people can accept decisions that go against their personal interests, result in loss of livelihood and freedom, if they believe that the process of decision-making and rule-making is fair.

If it is not fair, there will be those who will bend the rules or flout them in the hope that they will not be caught.

Enforcement is not a sustainable solution. The numbers of people arrested, summoned and fined have increased but the number of people who tested positive has multiplied. Fear, coercion, police enforcement, arrests and fines are neither sustainable nor an effective deterrent.

After the initial fear in the first MCO in March had subsided, people began to “balik kampung” and took their family and children for “cuti cuti Malaysia” with no thought to the raging number of daily infections. Then, we have ministers and politicians who flouted the SOPs or were given exemptions from summons and fines. As a result, the situation had turned from a period where there were 11 days without a positive case reported to the current record high 4,029 cases a day.

To be effective, the MCO, whether it comes under the Prevention and Control of Infectious Diseases Act 1988 or under the Emergency Ordinance, relies on people complying with the SOPs even though they are against their personal interests.

Whether the government succeeds or fails in bringing the Covid-19 pandemic under control depends ultimately on whether the people perceive the rules and SOPs as legitimate.

Parliament helps to provide legitimacy to emergency regulations because the debate is held in public and the people can hear the justifications for them. Parliamentary oversight is designed to prevent inappropriate or disproportionate use of the emergency regulations.

In addition, a parliamentary sitting can enhance the effectiveness of legislation by giving interested parties an opportunity to identify the problems in the legislation and to lobby MPs to seek changes to them.

Legitimacy is provided by Parliament in the exercise of its function through debates to ensure that the public health emergency does not give licence to the government to cast aside its obligations to uphold fundamental rights and liberties.

Through debate, Parliament can ensure that the severity, duration and scope of the emergency measures are strictly necessary to tackle public health threats.

The emergency regulations should not be used as a cover for repressive action or for corrupt practices. The procurement of medical supplies and resources - from personal protection equipment to vaccines - may prove too tempting for some if there is no parliamentary oversight.

Parliament has an important role to play in the fight against Covid-19. It provides the oversight and legitimacy required for public acceptance and compliance. If there is no legitimacy, then after this MCO 2.0, we are going to have MCO 3.0, MCO 4.0 and ad infinitum - and a never-ending state of emergency.

WILLIAM LEONG JEE KEEN is Selayang MP.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.