LETTER | Will the special committee be truly independent?

LETTER | A proclamation is but a declaration – an official declaration issued by a person of authority to make certain announcements known. Or simply an official formal public announcement.

So, a proclamation of emergency is simply what it is: an official declaration of a state of emergency. It is not the law itself. The law is to be supplied by an Emergency Ordinance, as the law is called when a proclamation of emergency is in force.

Since the two Houses of Parliament are not currently sitting concurrently, the Yang di-Pertuan Agong may act under Article 150(2B) to promulgate Emergency Ordinances having the force of law.

And the Agong has now promulgated an Emergency Ordinance called the Emergency (Essential Powers) Ordinance 2021 (Ordinance 2021), which has been gazetted vide P.U. (A) 12 and deemed to come into operation on Jan 11.

Here’s a brief discussion about the set-up of the independent committee supposedly to be made up of health experts and bipartisan lawmakers to advise the King on the emergency which was announced by Prime Minister Muhyiddin Yassin in his televised address on Jan 12.

"To ensure the emergency is enforced in a fair and transparent manner, a special independent committee will be established… to advise the King whether this national emergency is needed at the federal level [...] or if it is time to end the proclamation earlier than the scheduled date," the prime minister said.

"Sultan Abdullah has accepted the government's suggestion for an independent committee comprising government and opposition MPs as well as the relevant health experts,” he added.

Now, Section 2 of Ordinance 2021 provides as follow:

• There shall be established an independent special committee to advise the Yang Di-Pertuan Agong on the continuing existence of the grave emergency threatening the security, economic life and public order of the Federation arising from the epidemic of an infectious disease, namely Coronavirus Disease 2019 (Covid-19).
• The members of the independent special committee shall be appointed by the Yang Di-Pertuan Agong.

With due respect, the provisions above pale in comparison with Emergency Ordinance No. 2 1969 which was promulgated following the 1969 proclamation of emergency by the King. The Ordinance delegated the executive authority to a Director of Operation appointed by the Agong and provided that the former “shall be assisted by a Council to be known as the National Operations Council (better known as MAGERAN), consisting of such persons as the director may appoint in his absolute discretion”.

To assist the director, a chief executive officer was to be appointed at the absolute discretion of the director. The CEO, in turn, was to be assisted by “such persons as he may appoint from amongst members of the Public Service of Malaysia”.

The provisions under the Ordinance were indeed extreme, but there was at least a clear nomenclature of authorised persons with extreme powers.

Section 2 of Ordinance 2021, on the other hand, lacks detail. It does not even identify a chairperson and the number of members that the King may appoint to the committee.

The drafters could have taken a leaf from the Standing Orders of the Dewan Rakyat which establish a number of select committees whose appointments are made more transparent and whose chairpersons, in recent times, have been appointed from the opposition.

It remains to be seen if bipartisan lawmakers would be forthcoming to be appointed to the committee.

Will it not only be independent but be seen to be independent?