Covid-19 cannot be defeated by laws lacking legitimacy

 

Article 150(3) of the Federal Constitution

Deputy Speaker Azalina Othman Said had said that she found Article 150(8) of the Federal Constitution 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 to question in any court or on any ground.

However, 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 and ordinance.

Therefore, the request to call for a Parliament sitting for the purpose of having the proclamation and ordinance to be tabled is part of the constitutional scheme for an emergency.

Article 150(8) does not apply because the Parliament 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 emergencies. There is a misconception that whenever an emergency is declared that Parliament is prorogued or dissolved. This is not correct.

Prof Shad Saleem Faruqi has pointed out that when the Sarawak Emergency was declared, Parliament was summoned to meet three days later.

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 went on as usual. The constitutional scheme states that whether it is during normal times or a period of emergency, Parliament must continue to perform its constitutional function.

Article 150(8)

Article 150(8) is an ouster clause. This Article was inserted as part of several amendments to Article 150 under the 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 that 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) and Indira Gandhi v The Director of Islamic Affairs Perak (2018). The Federal Court in Indira Gandhi’s case made among others, the following rulings:

a. That the principle of separation of powers is part of the basic structure of the Federal Constitution;

b. The power of judicial review is an essential feature of the basic structure of the Constitution;

c. The features in the basic structure of the Constitution cannot be abrogated by Parliament by way of constitutional amendment;

d. 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 powers which forms the basic structure of the Constitution. 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) have 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.

Parliament’s role

Azalina, in refusing to call for a Parliament sitting offered alternatives such as the formation of a bipartisan council and for the rakyat to bring their complaints to Umno ministers.

It is unfortunate that she has failed to consider the important role Parliament is to play in the fight against the pandemic and economic crisis.

Any governmental order, policy or programme in the fight against Covid-19 which does not undergo Parliament scrutiny and obtain the required approval does not enjoy the legitimacy and public acceptance required for its successful implementation.

When rules do not benefit people personally, they look at who was included or excluded, whether there was due diligence, transparency or accountability.

For Covid-19 compliance, people can accept decisions that go against their personal interest, loss of livelihood and freedom, if they believe that the process of decision-making and rule-making are fair. If not, then there will be those who bend the rules or flout them hoping they will not be caught.

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

The initial fear which came with the first movement control order (MCO) in March last year has subsided as people went ahead and “balik kampong” as well as took their family for “cuti-cuti Malaysia” with no thought to the raging number of daily infections.

Coupled with poor leadership as ministers and politicians flout the standard operating procedures (SOPs) or were given exemptions from summons and fines, the situation turned from a period where there were 11 days without a positive case reported to the present record high 4,029 cases a day.

The MCO, whether under the Prevention and Control of Infectious Disease Act 1988 or under the Emergency Ordinance, rely on people complying with them 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 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 which must be laid as soon as reasonably practicable.

It also improves the effectiveness of legislation by giving interested parties an opportunity to identify problems in legislation and 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 on the burdens imposed by the rules, such as the loss of personal freedom, income, privacy, discrimination, stigmatisation and stress.

Parliament ensures through debate and questions to ministers for public consumption that the severity, duration and scope of the emergency measure is strictly necessary to the public health threat and proportionate to its nature and extent.

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 protective equipment (PPE) to vaccines may prove too tempting for some if there is no Parliament 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, as well as a never-ending state of emergency.

William Leong Jee Keen is the MP for Selayang. - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.