Every law, (be it federal or state), must go through this constitutional machinery. A Federal Bill must be approved (or passed) by the Dewan Rakyat, and then passed by the Dewan Negara and finally approved by the Yang di-Pertuan Agong. This last stage is known as receiving ‘the Royal Assent’.
A bill for a State Enactment ( or, in Sarawak Ordinance) must first be approved by the State Executive Council (called in Sabah the ‘cabinet’ and in Sarawak the ‘supreme council’), then passed by the state legislative assembly (in Sarawak called the ‘council negeri’) and finally approved by the ruler or governor.
In recent times, this provision has been amended by none other than our former premier, Dr Mahathir Mohamad who has admitted this grave mistake by apologising for amending Article 66 of the Federal Constitution and curtailing the powers of the Yang di-Pertuan Agong.
In his blog Chedet.com, the ex-premier cited the recently enforced National Security Act 2016, by giving the power of the Agong to the prime minister is derogatory to the provision in Article 38 (4) which states “No law directly affecting the privileges, position, honours or dignities of the rulers shall be passed without the consent of the ‘Conference of Rulers’.
Written with such erudite clarity, one couldn’t object to concur with Dr Mahathir’s statement that the declaration of an Emergency is one which the constitution specifies as being at the discretion of the Yang di-Pertuan Agong under Clause (I) of Article 150.
Since the National Security Council(NSC) Act is meant to give the power of the Yang di-Pertuan Agong to the prime minister as chairperson of the National Security Council, the need for the Yang di-Pertuan Agong to have the sole right to decide a state of Emergency becomes redundant.
Effectively the NSC had taken away the power and the right of the Yang di-Pertuan Agong. For this to be done the consent of the Yang di-Pertuan Agong and the Conference of Rulers has to be obtained.
However, Dr Mahathir surprisingly didn’t elaborate on the encroachment of personal freedom aspect with the onset of the National Security Law in his blog. Dr Mahathir mentioned that “The state of emergency is reserved for the Yang di-Pertuan Agong because its implications are serious. It gives the government the right to suspend laws. With this right the government can arrest and detain any person without trial.”
Does the concept that there is no prerogative power to make subsidiary legislation, with all powers being derived solely from statutes passed either by Parliament or by the legislature of a state apply in this case?
The only exception of Article 132 in respects of the Yang Di-Pertuan Agong’s role in matters concerning with persons in the public service in lieu of the provision of the existing law as mentioned by Dr Mahathir and the power of the Agong to proclaim an emergency solely rests with the Yang di-Pertuan Agong and may not be challenged.
In the event that a person is arrested by the authorities, under Article (3) he or she shall be informed the grounds of the arrest and to seek redress the person shall be allowed to consult and be defended by a legal practitioner.
Furthermore, when a person is arrested and may be detained for longer period, he or she shall be without unreasonable delay, and in any case within twenty-four (24) hours which excludes travel time for any necessary journey must be produced before a magistrate.
These rights are enshrined in Article (4) of the Federal Constitution but in lieu of the National Security - a person who is deemed proven as an enemy alien (read: saboteurs of democratically elected government) can be detained for a unspecified time without the purview of Article (3) and (4).
Old wine in a new bottle?
Right now, with the onset of the National Security Council (NSC) Act 2016, we couldn't stop wondering if this new law is just old wine in a new bottle in the form of the colonial era Internal Security Act (ISA). Are we waiting for another form of apology due to ISA’s infamous Ops Lalang?
Lastly , NSC Act under Part V: Special Powers of the Director of Operations and Security Forces Deployed to the Security Area can seize, search and even destroy the premise without a warrant and it directly goes against Article 13(2) of the Federal Constitution which states that no law shall provide for the compulsory acquisition or use of property without adequate compensation as the Federal Constitution is the supreme law of the land in Malaysia and any law passed by the Parliament which is inconsistent shall be null and void to the extent of the inconsistency involved.
Furthermore, any actions taken cannot be questioned in a court of law and under Article 5(1), which guarantees the fundamental liberty of a person that no person shall be deprived of his life or personal liberty in accordance with law.
A lot of people in this country including learned scholars and public notaries coined this act as even more draconian than the repealed ISA. Would the new law be used against the misdemeanor conduct of Malaysians at large? Or would it be used to silence the critics of the government of the day instead? - Mkini
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