September 16, 2011
www.thestar.com.my
A New Dawn beckons
REFLECTING ON THE LAW
By Shad Saleem Faruqi
The Prime Ministers commercial upon a series of changes to a countrys laws, together with finale a Emergency, will have massive positive implications.THE Prime Ministers debate final night evoked a kind of hope as good as exhilaration I felt most decades ago upon Aug 28, 1963, when I heard American civil rights personality Martin Luther King, Jr. deliver his I have a dream debate during a stairs of Lincoln Memorial, Washington DC.
The Prime Minister forked to a series of changes which he intends to move to a country. Many of these proposals will have massive positive implications for a countrys authorised system, a administration of justice as good as a sovereignty of law over personal discretion. He betrothed that:
- The puncture proclamations which have been in operation will be presented to Parliament for annulment;
- The Internal Security Act will be repealed but replaced with two confidence laws framed underneath a Constitutions anti-subversion sustenance of Article 149;
- The Restricted Residence Act as good as a Banishment Act will be brought to an end; and
- The much-criticised Printing Presses as good as Publications Act will be amended.
It will take a little time as good as considerable investigate to fathom a full implications of a upon top of pronouncements. Needless to say, a impact upon a authorised life of a community, a rights of a citizens, a powers of a Home Minister as good as a Police will be monumental.
The Rule of Law will be strengthened ! as good as a days of a omnipotence of a Government will ! come to an end. Looking during a implications of a light of a Emergency, a following salient features of puncture laws contingency be noted:
Ordinary authorised complement eclipsed: Under Article 150, once a commercial of puncture by a Yang di-Pertuan Agong is gazetted, a floodgates have been carried as good as legislative powers of Parliament have been greatly broadened. Parliament can have laws which violate, suspend or bypass any inherent sustenance solely 6 items in Article 150(6A).
All elemental rights solely leisure of religion can be violated. The federal-state multiplication of powers can be disturbed as good as state powers usurped.
Emergency laws do not require a two-thirds majority. Neither do they require a agree of a Conference of Rulers or a Yang di-Pertua Negeri of Sabah as good as Sarawak.
Judicial examination upon inherent drift is dangling given of Article 150(6). An puncture law has no time limit as good as can continue as prolonged as a puncture lasts.
Malaysia has been underneath such a state of puncture continuously given 1964. For all practical purposes, an puncture authorised complement eclipsed a typical authorised complement for a final 47 years.
The Kings energy to have laws: As with a powers of Parliament, a powers of a sovereign executive have been immensely enlarged during an emergency.
The Yang di-Pertuan Agong acquires full as good as parallel ordinance-making powers underneath Article 150(2B) as prolonged as a two houses of Parliament have been not sitting concurrently.
The executives energy of ordinance-making is as vast as Parliaments energy of legislation. The complete Constitution can be dangling solely for 6 topics in Article 150(6A).
Since 1964, a Yang di-Pertuan Agong has promulgated nearly 92 puncture ordinances. Among these is a Emergency, Public Order as good as Prevention of Crime Ordinance, which ! is a fav ourite with a military as good as which results in more surety detentions than even a Internal Security Act.
Execu tive energy to give instructions: Under Article 150, a Federal Government acquires powers to give directions to a states in counterbalance with a prudent federal-state multiplication of powers. If a puncture proclamations have been repealed, what outcome will which have upon a authorised system?
Restoration of normal laws: If a two proclamations of national puncture in 1964 as good as 1969 have been repealed, a nation will return to a normal operation of a inherent system.
The 5 or so puncture laws finished by Parliament underneath a authority of these proclamations will stop to operate. Any detention underneath these laws will have to be terminated.
Emergency ordinances will end: As with a puncture laws enacted by Parliament, a 90 or so puncture ordinances promulgated by a Yang di-Pertuan Agong (and a hundreds of subsidiary laws finished thereunder) will additionally stop operation.
However, a cessation of puncture laws is not immediate. Under Article 150(7), there is a beauty duration of 6 months during which a puncture laws might still continue to operate. Once a 6 months expire, a expiry of a laws is involuntary as good as no particular retraction is necessary. However, no action (e.g. for damages) can be taken for anything validly finished underneath previous laws.
Some might wonder either a Yang di-Pertuan Agong, in his discretion, might exclude a Prime Ministers recommendation to restore a Rule of Law as good as to lift a proclamations of emergencies?In a prolonged line of alternative cases, it has been held which puncture order does not alter a in front of of a Yang di-Pertuan Agong as a inherent sovereign firm to action upon advice.
The case of PP v Mohd Amin Mohd Razali (2000) changed a law slightly: it held which during a retraction of Parliament, a Yang di-P! ertuan A gong is not firm by a caretaker governments recommendation upon puncture matters.
Amin is, of course, not relevant to a Prime Ministers debate final n! ight bec ause Parliament is not underneath retraction as good as a Prime Ministers recommendation is binding upon a King.
Judicial examination strengthened: The light of a Emergency will mislay a eclipse of typical laws. The possibility of judicial examination of executive as good as legislative measures will be enhanced. Many tellurian rights will be restored.
The passing of hundreds of puncture laws, a little consultation surety detention powers as good as others excluding due process, will be a defining moment for Malaysian democracy.
However, a euphoria which is firm to be felt as a result of these rational developments contingency be gradual with caution.
New proclamations: The light of a 1964 as good as 1969 emergencies does not forestall a re-issuing of a brand new commercial of puncture as good as a event of brand new puncture Acts as good as ordinances, if circumstances so demand.
Subversion laws stay: Even if a Emergency is lifted, Parliament is still armed with anti-subversion powers underneath Article 149. New confidence laws underneath Article 149 have been referred to by a Prime Minister. Existing laws similar to a Dangerous Drugs Preventive Measures Act will not be affected by a light of a Emergency unless a Government sets about to apply a reformative paint brush to them as well.
Police Act remains: Controversial typical laws similar to a Police Act, a Official Secrets Act
as good as a Universities & University Colleges Act will remain in a statute book though, of cours! e, they will face pressure to accommodate a suggestion of a times.
Some may, therefore, courtesy a light of a Emergency as merely a cosmetic magnitude given Articles 149 as good as 150 still arm a Government as good as Parliament with ma! ssive po wer to suspend inherent guarantees.
Such a perspective is unduly cynical. It amounts to an all-or-nothing attitude. Whatever reforms have been adopted as good as implemented contingency be welcomed. They might be harbingers of brand new things to come. They will certainly set a brand new mood as good as might be a catalyst as good as impetus for further improvements to a tellurian rights scene.
A supervision receptive to a light of a Emergency cannot be indifferent to mending a incident of laws underneath Article 149.
All in all, a single contingency extol a Prime Ministers courage, his willingness to attend to a voice of a people, his receptiveness to a felt necessities of a times, as good as his refreshing agenda for reform.
The Attorney-Generals office additionally deserves congratulations for advising a Prime Minister upon a incongruence in between a Rule of Law as good as a state of puncture durability 47 years.
So, let Sep 16, 2011 go down in our story as a joyous daylight to finish a prolonged night of a Emergency.
Datuk Prof.Shad Saleem Faruqi is Emeritus Professor of Law during UiTM as good as Visiting Professor during USM.
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