Article 150 : Emergency Declaration!

What is this Emergency Declaration that all these politicians and lawyers are talking about?

An "Emergency Declaration" is a prerogative power of the Agong as provided under Article 150 of the Federal Constitution to place a particular area, or to the extent of the whole of Malaysia, under a state of emergency (hereinafter as "Genjutsu").

Genjutsu is a situation in which the Prime Minister (hereinafter as "Madara") is able to promulgate laws in the form of ordinances (which are normally not permitted to be implemented) for the safety and protection of the people. It connotes a state of matters calling for drastic action.

Unfortunately, as confirmed in the case of Stephen Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 238, the ordinances can be promulgated and put into effect even if they are inconsistent with the provision of the Federal Constitution. In other words, it can have the effect of trampling your constitutional rights.

Genjutsu is perilous as it could be easily exploited by people like Madara for political gain. Once Getjutsu is invoked, Madara basically could gain unrestricted power because Genjutsu can allow Madara to enact laws that is abhorrent to the political philosophy of limited government as can be seen in the case of Phang Chin Hock v Public Prosecutor [1980] 1 MLJ 70 which the Federal Court upheld the validity of the Emergency (Essential Powers) Act 1979 [Act 216].

For example, section 2(4) of Act 216 had allowed the Agong to make any legally binding regulations even if they were inconsistent with any laws of the Federation including the Federal Constitution. Thus, laws can be made to turn your home into a sanctuary for Covid-19 patients without the need to make any compensation to you. Or worst, probably Madara can enact an ordinance that legalises PURGING!

Secondly, section 9(3) had suspended the judicial power of the Courts during the emergency. Thus, if your family members are purged during the period of Genjutsu, you can't go to the Courts and seek for help because the Courts, being the protector of the conscience and rights of the people, is practically and virtually powerless. In fact, they can be suspended, hence, being non-existence as long as Genjutsu is in effect.

Thirdly, section 12 had forbade the Courts from reviewing the validity of any laws made by Madara during Genjutsu. These laws basically can be made without your direct or indirect approval. In other words, in Genjutsu, there is no democracy. It's like on Earth there is no trees.

So yeah, invocation of Art 150 should be prevented in all costs unless it is direly needed.

Art 150 cont. (Emergency Declaration)

It’s not over yet given Art 40(1A) of the Federal Constitution is in existence and was given life by the case of An Oral Application by Dato’ Seri Anwar Ibrahim to Disqualify a Judge of the Court of Appeal [2000] 2 MLJ 481.

Article 40(1A) reads:

"In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice on advice or after considering advice the Yang di-Pertuan Agong shall accept and act in accordance with such advice."

Upon reading Article 40(1A), the Court of the Appeal had this to say:

"Clearly, therefore, the Yang di-Pertuan Agong must act upon the advice of the Prime Minister. The advice envisaged by Article 40(1A) is the direct advice given by the recommender and not advice obtained after consultation".

Therefore, given the above, and the fact that our Constitution has adopted, inter alia, the fundamental principle of constitutional monarchy, legally speaking, the Agong cannot say no to the advice of the Prime Minister.

It is best the Federal Court can re/adjudicate on this critical matter. A matter that requires the Federal Court to reevaluate and clarify the position of our Constitution against the fundamental principles enshrined therein. A doctrinal dispute. A dispute where a balance is required to be struck by the Federal Court between all existing constitutional principles.

A case that will be a precedent that will determine the future of Malaysia.

A case that will determine whether the Agong is bound by the Constitution, hence being merely a figurehead, or a monarch that has the residuary the prerogative to depart from the clear wordings of the Constitution by acting on His Highness’s own “wisdom”. Either way, it’s perilous to democracy, and also the Federal Court need to consider the possible remedy available to curb the evils of both. Such rejection made by the Agong will lead to unwanted repercussion in the future to be honest.

A case that will finally set a limit to the seem-to-be unrestricted power of the Prime Minister.

A case that will potentially balance up the three pillars of democracy viz. the Judiciary, the Legislative and the Executive.

A case of utmost importance.

A case of final determination, leading to either termination or revival.

A case of the people against the devil.

A case of hope, also potentially a case that might lead to disappointment, worst, war and spilling of blood.