LETTER | Point made, Deputy Speaker Azalina

LETTER | Section 2(1) of the Emergency (Essential Powers) Ordinance 2021 [PU(A) 12.2021] establishes an independent special committee (ISC) to advise the Yang di-Pertuan Agong (the King). The provision reads as:

“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).”

Some say that the ISC is to advise the King on whether the state of emergency may end earlier than Aug 1. But it is submitted that section 2(1) is worded wide enough to advise the King on extending or otherwise the state of emergency because the advice is on “the continuing existence of the grave emergency threatening the security, economic life and public order of the Federation arising from” the Covid-19 pandemic. It is precisely because of this state of affairs that the King proclaimed the state of emergency.

Now, by virtue of Article 150(2C) of the Federal Constitution, the Ordinance has the same force and effect as an Act of Parliament until it is revoked or annulled or until it lapses. In short, it is, for the time being and for all legal purposes, an Act of Parliament.

This calls for one to look at Article 40(1A) – Article 40 provides for the King to act on advice – which says that “in the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.”

The Ordinance is federal law. It provides for the ISC to advise the King on the continuing existence of the grave emergency arising from the Covid-19 pandemic. If the King is a constitutional monarch and acts on advice, it is this advice of the ISC that the King should consider.

Dewan Rakyat Deputy Speaker Azalina Othman Said has raised a valid point then. If it is the case that the cabinet is the one to advise the King, what’s the point of forming the ISC?

Now, can the Ordinance provide for the ISC to advise the King?

The short answer may be found in Article 40(3) which says that “federal law may make provision for requiring the Yang di-Pertuan Agong to act after consultation with or on the recommendation of any person or body of persons other than the Cabinet”.

Again, the Ordinance is federal law. And point made, Azalina.