Legal experts agree that the Emergency Ordinance allows Sarawak assemblypersons to remain in their positions past the legislative assembly’s June 6 expiry date.
This is until the Yang di-Pertuan Agong decides on a new date on which to dissolve the assembly and call for a state election.
Speaking to Malaysiakini, Universiti Malaya emeritus law professor Shad Saleem Faruqi pointed to Section 15 of the Emergency (Essential Powers) Ordinance 2021 (P.U [A] 12).
The section deems ineffective any state constitution provision that pertains to calling, proroguing and dissolving a state assembly.
It also gives the Agong power to call, prorogue or dissolve a state assembly at an “appropriate” date after consulting with a state’s monarch or governor.
To prorogue a legislative assembly is to discontinue a session without dissolving it. The assembly remains legally in effect although not in session.
“As long as the Agong doesn't dissolve (the assembly), if it is not dissolved then it is under prorogation.
“Under prorogation, they are still assemblypersons and they will receive their salaries,” Shad said.
Sarawakian lawmakers are the highest paid in the country. Each assemblyperson receives a RM15,000 salary, just RM1,000 shy of a MP.
The Sarawal chief minister gets another RM39,000, which is much more than the RM22,826.65 for prime minister.
Lawyer Lim Wei Jiet shared Shad’s view but noted that the ordinance was silent on assemblypersons who do not have executive power.
“It can be implied that if the state assemblies are not technically dissolved, the assemblypersons will remain as assemblypersons.
“Will be interesting to see if anyone challenges this in court because it is not clear,” he said when contacted.
The unicameral Sarawak state assembly has 82 seats but only 81 assemblypersons, with 69 on the government bench and 12 on the opposition bench.
The one vacancy is the Pujut seat after former DAP assemblyperson Dr Ting Tiong Choon was disqualified for having dual citizenship.
Shad, a constitutional law expert, added that the Emergency Ordinance effectively transferred decision-making authority from states to the Agong and federal government.
“The provisions in the state constitution about summoning, proroguing and dissolving are suspended and the power is taken from the governor and given to the Agong, who then acts on the advice of the prime minister.
“So basically means the federal government (decides). Everything has been federalised,” he said.
Emergency supersedes expiry
Aside from proroguing state assemblies, Section 13 of the Ordinance suspends elections and allows the Agong to determine when to hold state polls.
Section 11, meanwhile, allows any chief minister and state cabinet who was in power before the Emergency Proclamation on Jan 11, 2021, to remain in executive power until the Emergency is lifted on Aug 1 or sooner.
Lim said these sections apply to Sarawak.
“Section 13 is meant to supersede the state assembly expiry date. Section 13(2) empowers the Agong to set an election date consultation with the respective ruler or the state governor.
“Section 11 states that the current Chief Minister and the State Cabinet will continue to exercise executive functions while the emergency is in force,” he analysed.
Lim is also the secretary-general of human rights NGO Hakam and a co-founder of the Malaysian United Democratic Alliance (Muda).
Yesterday, the Agong advised Sarawak chief minister Abang Johari Abang Openg and his cabinet to continue with conducting “business as usual” after June 6.
This was reportedly due to the Covid-19 pandemic in the country.
In Article 21(3) of the Sarawak constitution, the state legislative assembly “shall, unless sooner dissolved, continue for five years from the date of its first sitting and shall then stand dissolved”.
The last state election was held on May 7, 2016.
Assemblypersons were sworn in a month later on June 7 and the first sitting of the present 18th Sarawak legislative assembly was held on June 8, 2016. - Mkini
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