Dictatorship Rule by State of Permanent Emergency

(Speech by Parliamentary Opposition Leader, DAP Secretary-General and Member of Parliament for Petaling, Lim Kit Siang, on the 1979 Emergency (Essential Powers) Bill in the Dewan Rakyat on Wednesday, 17th January 1979)

Dictatorship Rule by State of Permanent Emergency

Parliament has been specially summoned today to do an extraordinary thing: to legalism the illegalities committed by the Government for the last eight years since February 20, 1971 by way of unconstitutional and invalid Emergency Regulations.

The cause of this had been the Privy Council judgment in Teh Cheng Poh alias Char Meh v. the public Prosecutor ruling that the 1975 Essential (Security Cases) (Amendment) Regulations are unconstitutional and void.

The Security Cases Regulations were purported to be made by the Yang di-Pertuan Agong under section 2 of the Emergency (Essential Powers) Ordinance 1969 of 15th May 1969, which were made by the di-Pertuan Agong in reliance upon the powers conferred upon him by Article 150 (2) of the Federal Constitution following the Proclamation of the Emergency in the wake of the May 13 riots of 1969.

Since the enactment of the Security Regulations in 1975, I had twice sought to repeal them in Parliament, once on December 19, 1975 and the second time on October 24, 1977, but on both occasions my nation was defeated.

I said in the Parliamentary debate on December 19, 1975, that the Security Cases Regulations was not only unconstitutional, but tantamounts to a usurpation of Parliamentary powers and functions by the Executive.

This DAP position has now been vindicated by the Privy Council in the final last case of criminal and constitutional appeal to it from Malaysian.

In its judgement, the Privy Council held that the Government could not reply on Article 150 (2) of the Federal Constitution to enact the Security Cases Regulations.

Article 150 (2) of the Constitution reads:

“If a Proclamation of Emergency is issued when Parliament is not sitting, the Yang di-Pertuan Agong shall summon Parliament as soon as may be practicable, and may, until both Houses of Parliament are sitting, promulgate ordinances having the force of law, if satisfied that immediate action in required.”

The Privy Council ruled: “The power to promulgate Ordinances having the force of law is expressed to be exercisable only until both Houses of Parliament are sitting. It lapses as soon as Parliament sits. ……Once Parliament has sat after the Proclamation, the power to legislate by Ordinance under article 150 (2) does not revive even during periods when Parliament is not sitting, unless and until a new proclamation of Emergency is issued by the Yang di-Pertuan Agong.”

The Privy Council further said:

“There are only two sources from which the Yang di-Pertuan Agong as such can acquire power to make written law, whatever label be attached to it; one is by a provision of the Constitution itself; the other is by the grant to him of subordinate legislative power by an Act passed by the Parliament of Malaysia in whom by article 44 of the Constitution the legislative authority of the Federation is vested. So far as his power to make written laws is derived from Article 150 (2) of the Constitution itself, in which they are described as ‘ordinances’, it comes to an end as soon as Parliament first sits after the Proclamation of an Emergency; he cannot prolong it, of his own volition, by purporting to empower himself to go on making written laws, whatever description he may apply to them. That would be tantamount to the Cabinet’s lifting itself up by its own boot straps. If it be thought expedient that after Parliament has first sat the Yang di-Pertuan Agong should continue to exercise a power to make written laws equivalent to that to which he was entitled during the previous period to exercise under Article 150 (2) of the Constitution, the only source from which he could derive such powers would be an Act of Parliament delegating them to him.”

Before we proceed further, it must be emphasised that when we in this debate refer to the Yang di-Pertuan Agong, we are in fact referring to the Cabinet because the Yang di-Pertuan Agong is a constitution monarch.

As the Privy Council put it, “Although this, ( the power to promulgate ordinances under Article 150 ( 2 ) ), like other powers under the Constitution, is conferred nominally upon the Yang di-Pertuan Agong by virtue of his office as the Supreme Head of the Federation and is expressed to be exercisable if he is satisfied of a particular matter, his functions are those of a constitutional monarch and expect on certain matters that do not concern the instant appeal, he does not exercise any of his functions under the Constitution on his own initiative but is required by Article 40 ( 1 ) to act in accordance with the advice of the Cabinet. So when one finds in the Constitution itself or in a Federal law powers conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affairs exist or that particular action is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the Cabinet, or the opinion or satisfaction of a particular Minister to whom the Cabinet have delegated their authority to give advice upon the matter in question.”

The Privy Council decision has therefore made it abundantly clear that the Yang di-Pertuan Agong has no power to make Essential Regulations under the Emergency ( Essential Powers ) Ordinance 1969 as from February 20, 1971 when Parliament was reconvened after a suspension of 20 months, and Regulations like the Essential Security Cases Regulations 1975 and the Essential ( Community Self-Reliance ) Regulations 1975 – which the Rukun Tetangga regulations – and the Essential ( Control of the sale , Supply, Import and Export of Rice ) Regulations were all unconstitutional.

The Privy Council decision has wide and vast implications, and has put the Government in a spot as having committed illegal and unconstitutional acts from 20th February 1971 to date.

I submit that the Government’s response and reaction to this Privy Council decision will be an important test of its commitment to the rule of law.

‘Heads I win, Tails you Lose ‘ Mentality

Where the Government is party to a case, will it accept the judgement of the highest appellate court in the land although it suffered reverses and embarrassments, binding itself to accept judicial decisions just like any other citizen, or whether it takes the attitude that in legal cases, the government’s policy is ‘ heads I win, tails you lose ‘. If the government wins the case in court, well and good; if it loses, it can always rely upon its Parliamentary majority to change the law retrospectively to enable it to win what it has lost in court.

This happened last month when the Government amended the Constitution to nullify another recent Privy Council judgement in Mahan Singh v. Government of Malaysia on the security of tenure of public servants under Article 135 ( 2 ) of the Constitution – which amendment was given retrospective effect all the way back to Merdeka Day in 1957.

Ever since Merdeka, the government has developed the propensity and appetite to amend the Constitution as and when it suits its political whims and fancies. It has now developed a new propensity and appetite to amend the Constitution or enact laws with retrospective effect to win what it had lost in the courts, or to ensure a victory in courts by changing the law while the cases are still in court.

This new propensity of the Government to ensure a ‘heads I win, tails you lose’ result in legal cases of which the Government is a party is fraught with grave dangers to the country. Firstly, it would breed an arrogance of power, for it would nurture in the minds of the Government leaders and officers that they could do no wrong, or that they have the capacity and power to change wrongs into rights. Secondly, it would encourage the Government to treat with contempt the fundamental, constitutional and legal rights of citizens or slipshod in law-making or discharge of government responsibilities because they could always validate with retrospective effect any illegality or unconstitutionality. Thirdly, it would gravely shatter public confidence in the rule of law, in the sanctity of laws courts, for the courts would not be able to plat its role as a bulwark against unconstitutional acts, or excesses or abuses of power by the Executive, against the citizen. Fourthly, it would breed a cynical and subservient citizenry who would not dare or would not find it worth their while to stand up for their constitutional and legal rights against government encroachments and excesses, for the Government will always win in with its ‘ Heads I win, Tails you lose ‘ mentality.

The Bill before this House, the Emergency (Essential Powers) Bill 1979, is latest and most concrete and shameless embodiment of this Government’s ‘ Heads I win, Tails you lose’ Mentality.

The Government is the conscious author of the acts of illegalities and unconstitutionalities pronounced by the Privy Council, for it recklessly disregarded the warnings and advice of the DAP and the legal community. It has only itself to blame. However, in view of the far-reaching implications of the Privy Council decision which meant that the Government had been guilty of a host of illegal acts, no government could ignore the judgement and must devise a response to it.

But this government response must be one which not only seeks to minimise the adverse consequences of the government’s illegalities, but which also strengthens public confidence in the rule law, and in government sense of fairness and responsibility.

For instance, a responsible government response to the Privy Council decision could comprise the following elements:

  1. Acceptance of the Privy Council decision that Essential Regulations made after 20th February 1971 by virtue of the 1969 Emergency Ordinance are unconstitutional and void;
  2. Enactment of Indemnity Acts by Parliament to exclude liability of the Executive for bona fide actions taken in pursuance of these in valid Regulations, providing that no civil or criminal proceedings should be instituted for anything done under the Regulations;
  3. Review of the invalid Regulations, and if the Executive is of the view that they should be made law, enact them by normal parliamentary legislative process without any retrospective application.

But from this Bill, It would appear that the Government, stung by its defeat in the Privy Council in the case of Teh Cheng Poh v. Public Prosecutor, has decided to flaunt its power to demonstrate to all and sundry that anybody who cross it cannot win, for it could in the final analysis resort to the power of retrospective legislation to win what it has lost in the courts. We have the parliamentary majority and we can do what we want.”

The damage this Bill will inflict on public confidence in the rule of law is immeasurable, and for so little purpose, apart from saving the faces of the Ministers and officers responsible for the Regulations.

The Government does not have the humility to admit that it has made grave mistakes in enacting unconstitutional laws. What is worse, it has decided to compound these mistakes by giving there unconstitutional laws retrospective validity all the way back to 20th February 1971 by way of this 1979 Emergency (Essential Powers) Act – when there is no justification whatsoever for its enactment as it is based on a Proclamation of Emergency to deal with the May 13 riots – 1969 which situation had ceased to exist even before February 1971.

The perpetuation of a proclamation of Emergency, when the emergency condition for which it was made had ceased to exist, is clearly an abuse of power and unconstitutional.

Although the Privy Council in Teh Cheng Poh v. Public Prosecutor did not decide on the question whether by the time the security Cases Regulations 1975 were made, the emergency proclaimed on 15th May 1969 was over and the Emergency Proclamation of that date had ceased to be in force, a careful reading of the decision supported the view not only that an Emergency Proclamation is justificiable, but that any appeal to the Privy Council ( if such appeals are still allowed ) would stand a very good case of succeeding on the ground that the 1969 Emergency Proclamation had ceased to be in force.

This is because although the question of Emergency Proclamation was not argued before the Privy Council, the question of the Security Area Proclamation made by the Yang di-Pertuan Agong under s. 47 of the Internal Security Act 1960 was considered by the Privy Council.

This is what the Privy Council decision on the question of the Security Area Proclamation:

“The power to proclaim an area as a security area with the consequences that this will entail is a discretionary one. It is for the Yang di-Pertuan Agong ( again, in effect, the Cabinet ) to form an opinion whether public security in any area of Malaysian is seriously disturbed or threatened by the causes referred to in the section ( s. 47 ) , and to consider whether in his opinion it is necessary for the purpose of suppressing organized violence of the kind described. But, as with all discretions conferred upon the Executive by Act of Parliament,
this does not exclude the jurisdiction of the court to inquire whether the purported exercise of the discretion was nevertheless ultra vires either because it was done in bad faith (which is not in question in the instant appeal ) or because as a result of misconstruing the provision of the Act by which the discretion was conferred upon him the Yang di-Pertuan Agong has purported to exercise the discretion when the conditions precedent to its exercises were not fulfilled or, in exercising it, he has taken into consideration some matter which the Act forbids him to take into consideration or has failed to take into consideration some matter which the Act requires him to take into consideration.”

The Privy Council went on to say :

“The Proclamation is lawful because it is considered by the Yang di-Pertuan Agong to be necessary to make an area a security area for the purpose, not of suppressing violence by individuals generally but of suppressing existing or threatened organised violence of the kind described in the section. Once he no longer considers it necessary for that particular purpose it would be an abuse of his discretion to fail to exercise his power of revocation, and to maintain the Proclamation in force for some different purpose.”

The Privy Council was of the view that, the courts were not “powerless to grant to the citizen a remedy in cases in which it can be established that a failure to exercise his power of revocation would be an abuse of his discretion”, and that mandamus could be sought against the members of Cabinet requiring them to advice the Yang di-Pertuan Agong to revoke the Proclamation.

An application for mandamus has in fact been filed in the Penang High Court against the Cabinet requiring them to advice the Yang di-Pertuan Agong to revoke the Proclamation of Security Area.

By the same argument, there is a remedy in court against the abuse of discretion in not revoking the Proclamation of Emergency under Article 150 (1), when the original circumstances giving rise to the proclamation has ceased to exist.

It is in recognition of the merit and cogency of this argument that the Government has introduced Clause 12 of the Bill which makes the Proclamation by the Yang di-Pertuan Agong non-justifiable by the courts.

Clause 12 reads: “No court shall have jurisdiction to entertain or determine any application or question in whatever form, on any ground, regarding the validity or the continued operation of any proclamation issued by the Yang di-Pertuan Agong in exercise of any power vested in him under any Ordinance promulgated, or Act of Parliament enacted, under Part XI of the Federal Constitution.”

This is again another pre-emptive strike by the Government to protect further acts of illegality and unconstitutionality from challenge in the courts by the citizens of the country.

In making the Proclamation of Emergency by the Yang di-Pertuan Agong non-justifiable, and by way of a state of permanent emergency by perpetuating the Proclamation for times completely unrelated to the original situation calling for the proclamation, Parliament is in fact legislating for dictatorship rule in the country, undermining the whole basis of Parliamentary Government.

For instance, the 1979 Emergency (Essential Powers) Act which we are asked to pass today with retrospective effect will also confer on the Yang di-Pertuan Agong, (in fact, the Cabinet, or to be more exact the Prime Minister with at host two or three other members of his Kitchen Cabinet), the power to make regulations inconsistent with the provisions of the Constitution, including those pertaining to fundamental liberties.

As Emergency Proclamation is non-justifiable and there is no way to check abuse of Emergency Proclamation by the Executive, the Executive can, by way of regulations, make laws and amend the Federal Constitution at will. The Government will probably reply that the Executive is still answerable to Parliament – but we know that this is completely a myth. In Malaysia, it is the Executive which controls Parliament, and Members of Parliament answerable to the Prime Minister, rather than Executive answerable to Parliament. For instance, today, which Government Member of Parliament would dare to assert that it is the Executive which is answerable to Parliament, and that individual MPs have the right to go against Executive legislative proposals?

Malaysia in January 1979 is very different from Malaysia during the times of May 13, 1969. There is no justification for institutionalizing emergency measures of 1969. We should in fact be dismantling the emergency institutions of 1969.

In the 22 years of Independent nationhood, Malaysia has spent 18 years under Emergency, with the exception of the period 1960 – 1964. We live in fact in a permanent state of emergency.

We can see from Malaysia and other countries that the use of reserve constitutional powers and the introduction of a permanent state of emergency are the means where by authoritarian systems of Government founded.

Instead of making Emergency Proclamation non-justifiable, we should impose restrictions on the assumption and exercise of emergency powers. There should be a system of judicial control over the assumption and exercise of emergency of emergency powers by the Executive with a view to:

  1. determine whether the circumstances have arisen and the conditions have been fulfilled under which the powers may be exercised;
  2. limiting the extent to which such emergency powers may be exercised in derogation of the fundamental rights of the individual; and
  3. Giving the courts a supervisory jurisdiction to ensure that emergency powers are used only for the specific purpose for which they were granted, and that they are not exceeded.

We should return to our Merdeka Constitution of 1957 which provided that a proclamation of emergency automatically ceased to be in force at the end of two months after its issue, and an Ordinance promulgated by the Yang di-Pertuan Agong at the end of 15 days from the date on which both Houses are sitting, unless before that period it has been approved by resolution of each House, if we are not to have parallel systems of government – with emergency legislation co-existing and even overriding parliamentary legislation.

When I said just now that this Act on emergency powers in effect confers dictatorial powers on the Prime Minister and his kitchen Cabinet, I am not suggesting that the Prime Minister, Datuk Hussein Onn, is or is going to be a dictator. But the insitutionalising of dictatorial powers in the hands of the Prime Minister and his Kitchen Cabinet, without any possibility of judicial control or effective parliamentary check, in ordinary conditions under the guise of Emergency must be opposed by all democrats and lovers of freedom in Malaysia – for they represent a great danger to the Malaysian State.

We have seen too many instances of abuse of power by the authorities to believe that such concentration of power would not be misused. Political and populist leaders languish in the detention campus camps for no crimes apart from being thorns in the flesh of the Government. DAP MPs Sdr. Chain Heng Kai and Sdr. Chan Kok Kit have had their two-year detention renewed on New Year’s Day and falsely accused of complicity with the Communist United Front organizations – but which the Government could not furnish one iota of evidence.

This Act before the house is the latest in a series of high-handed, government action which could is counter-productive in of the objective of building a Malaysian nation founded on multi-racialism, unity, freedom, justice and rule of law.

The hour is drawer nearer when we must take a supreme effort to foster and strengthen national unity in our country, if we as a nation is to survive the perils of the region, as highlighted by the recent fall of Pnom Ponh to Viet named backed forces.

This national unity must be based on democratic values and inspect for fundamental rights, and not oppression repressive and authoritarian laws. The Emergency Act 1979, to deal with a Proclamation made 10 years ago, is a stop in the wrong direction. It subverts democracy. It parliamentary democracy. It subverts the Rule of laws. It subverts Constitutional guarantee. For instance, in making the Essential (Security Cases) Regulations retrospective, it violates Article 7 of the Constitutional which provides in clause (1) that “No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall surfer greater punishment for an offence than was prescribed by law at the time it was committed.”

There is no justification for passing such far-reaching emergency legislation in non-emergency times. In fact the 1969 Emergency Proclamation should be revoked. For these reasons, the DAP mast oppose this Bill.