Only King can declare Emergency, says constitutional lawyer

By Debra Chong

July 08, 2011

KUALA LUMPUR, July 8 — Constitutional lawyer Tommy Thomas assured the public today that only the King has the power to declare a state of Emergency as speculators claim the federal government will deploy the armed forces to control demonstrators ahead of Bersih 2.0’s electoral reform rally tomorrow.

Home Minister Datuk Seri Hishammuddin Hussein pledged earlier today that the ruling Barisan Nasional (BN) government will not send out military personnel to the city’s streets for the Bersih rally tomorrow, nor will Internet services be disrupted.

But the police’s steps to increase security around the city with a court order banning 91 individuals linked to Bersih 2.0, Umno Youth and Perkasa from entering Kuala Lumpur’s business and shopping districts are fuelling rumours of an impending Emergency that may allow martial law and a curfew to be imposed.

Thomas said the Yang di-Pertuan Agong Tuanku Mizan Zainal Abidin has limited powers as a constitutional monarch under Articles 32 and 39 of the Federal Constitution but still has a role to play in declaring a state of Emergency and in any order involving the army, navy and air forces as he is the supreme commander of the armed forces, as spelled out in Article 41.

“The Agong acts on the prime minister’s advice, but he has a role to play in declaring Emergency. While the prime minister is a key player, he cannot force the King to sign the Proclamation of Emergency which is a document to declare a state of emergency,” the prominent lawyer told The Malaysian Insider.

To support his case, he cited Article 150 (1): “If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.”

The former Bar Council secretary said further that even though the Federal Constitution provides that the King must act on advice from the prime minister, the nation’s highest law also prescribes exceptions to the rule as can be seen in Articles 40 (1) and (1A).

“Although the prime minister recommends an Emergency, the issuance ... the signing of the document is by the King. The Proclamation of Emergency is a document that has to have a signatory and that signature has to be the King’s and not anyone else’s. The prime minister cannot sign the document,” he said.

“So he can say whatever he wants but the signing matters and the role of the signatory cannot be undermined, otherwise there would be a constitutional impasse,” Thomas added.

He noted that since Independence on August 31, 1957, at least three Emergencies have been declared.

He listed a regional emergency in Sarawak in the mid-1960s over the controversial appointment of Tan Sri Stephan Kalong Ningkan as the state’s first chief minister, adding it had triggered a constitutional impasse.

Another regional emergency was declared in Kelantan 11 years ago over the arms heist in Sauk by terrorist group, Al-Maunah, that ended when the nation’s security forces, including the army’s special forces, 22nd Grup Gerak Khas and the police’s VAT 69 Pasukan Gerakan Khas, were enlisted.

But by far the most famous incident was when national Emergency was declared over the May 13, 1969 riots.

The veteran lawyer acknowledged that some quarters believe that since the proclamation was never officially revoked, the country is still in a state of Emergency despite the lapse of 42 years since the incident.

“Nonsense! Forty years have passed and normalcy has returned,” Thomas said, adding that several general elections have also been carried out, which would not be possible if the country were still in an emergency.

“Of course, it was never formally revoked but the reality is that Malaysians are no longer living under a grave condition. We can travel. For practical purposes, that Emergency has come to an end,” he said.
“What it means is that if they want extraordinary powers today, they would have to declare a new Emergency under Article 150,” Thomas said.