The four Proclamation of Emergency

(Speech by the Parliamentary Leader, DAP Secretary-General and Member of Parliament for Petaling, Lim Kit Siang, in the Dewan Rakyat when moving a motion to annul the Four Proclamations of Emergency in Malaysia on June 28, 1979)

Firstly, let me place on record my thanks to the Prime Minister, Datuk Hussein Onn, for agreeing to allocate time for debate on this motion on the annulment of Proclamations of Emergency, although the promised three day debate has been reduced to two; and although it would be at the expense of my other motion on the establishment of an all-party Speaker’s Conference on Parliamentary Reforms, which I hope and request the Prime Minister to consider granting parliamentary time at the very beginning of the next meeting of Parliament.

Mr. Speaker Sir, the motion that I am moving, with slight amendments, now reads:

“That this House resolves to annul

(i) the Proclamation of Emergency dated 3rd September 1964:
(ii) the Proclamation of Emergency dated 14th September 1966, applicable only to Sarawak;
(iii) the Proclamation of Emergency dated 15th May 1969; and
(iv)the Proclamation of Emergency dated 8th November 1977,applicable only to Kelantan;

as the emergency conditions giving rise to these Emergency Proclamations have ceased to exist.”

Apart from the First Emergency, which lasted from 1948-1960, Four Proclamations of Emergency had been issued since Merdeka Day 1957, and none of them had been revoked or annulled, which means that all these four Proclamations of Emergency are still valid and in force today.

The First of these four Proclamations was promulgated on 3rd September 1964 to deal with the threat to the security of Malaysia posed by the Indonesian Confrontation during the early days of Malaysia, when Sukarno’s Indonesia launched a campaign to “Crush Malaysia’ accusing Malaysia of being a neo-colonialist creation. The Indonesian Confrontation ended in 1966 with the fall from power of Sukarno in 1966, and the rise of Suharto, and Malaysia and Indonesia had been having good and close relations for the last 13 years, working closely in international forums as fellow ASEAN members. Yet this Proclamation of Emergency made during Indonesian Confrontation period is still in force, and it was on the excuse of the emergency conditions created by the Indonesian Confrontation that the Alliance Government suspended local government elections in 1965, promising to restore elections once conditions permit, but which suspension had become as permanent as the Proclamation of Emergency.

The Second Proclamation, which was applicable, only to Sarawak, was made on 14th September 1966, after Stephen Kalong Ningkan, was rein-as Sarawak Chief Minister by the Sarawak High Court on September 7, 1966. The High Court declared that the Sarawak Governor had no power to dismiss the State Chief Minister merely at the direction of the Federal Alliance leadership, and that the only constitutional way to dismiss the Chief Minister was through the passage of a no-confidence motion on the Chief Minister in the Sarawak Council Negeri. In order to achieve what the Alliance leadership had failed to do by unconstitutional means, namely the ousting of Stephen Kalong Ningkan, emergency was declared on the ground that “a serious situation which poses a grave threat not only to the security of the State of Sarawak but also to the whole country” had arisen, the Sarawak State Constitution was over riden by Federal emergency legislation to throw out Stephen Kalong Ningkan.

The Third Proclamation of Emergency was issued on 15th May 1969 because of the May 13 riots after the 1969 general elections. I do not propose to deal with the causes of the May 13 riots, except to say conflicting accounts exist as to who and how the riots started. What is relevant for the motion today is that the Emergency Proclamation was justified by the riots and total breakdown of law and order in Kuala Lumpur and its environs, but that those conditions have long ceased exist, at least as late as February 1971 when Parliament was re-convened.

The Fourth Proclamation of Emergency was issued on 8th November 1977 after an intense UMNO-PAS party warfare in Kelantan, with Berjasa fully being made used of by UMNO. When PAS refused to agree to the Four-Point Mahathir Formula on the imposition of NOC-rule in Kelantan, which tantamounts to PAS committing political suicide, Emergency was declared, Kelantan State Constitution suspended, and NOC rule imposed nonetheless. In February 1978, snap elections were called with UMNO capturing power in Kelantan from PAS for the first time in history.

Out of these Four Proclamations of Emergency, only two Proclamations were justified by the grave emergency conditions of the times, namely to deal with Indonesian Confrontation and the May 13 riots. The other two Proclamations to topple Stephen Kalong Ningkan and to unseat PAS rule in Kelantan were misuse of emergency powers for political gain.

Be that as it may, all the four sets of conditions giving rise to the Four Proclamations of Emergency have long ceased to exist, and there could be no justification for their prolongation, giving the impression that in Malaysia, we make Proclamations of Emergency as often as Municipalities make by-laws.

As far as I am aware, none of these four Proclamations have ever been revoked by the Government, nor annulled by Parliament, the only two
our present Constitution to bring a Proclamation of Emergency to an end. The third possibility of bringing Proclamations of Emergency to an end, by way of lapsing by effluxion of time, has not found favour with Federal Court in the case of Johnson Tan Han Seng v. Public Prosecutor ways our(1977) 2.M.L.J.66.

This is most unsatisfactory and productive of great abuse and misuse of powers, because it means that Emergency powers and legislation can continue indefinitely without the need for the Executive and Parliament, at fixed periods, addressing themselves to the continuing necessity for the Proclamation of Emergency.

The drafters of the Constitution, and the original Constitution on Merdeka Day, were conscious of the dangers of such open-ended and unfettered Emergency powers, and provided for a definite life span for Emergency Proclamations and emergency powers, unless renewed by Parliament. Thus Article 150(3) of the Federal Constitution on Merdeka Day 1957, stipulates:

“3. A Proclamation of Emergency and any ordinance promulgated under Clause (2) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to be in force

(a) a Proclamation at the expiration of a period of two months beginning with the date on which it was issued;

(b) an ordinance at the expiration of a period of fifteen days beginning with the date on which both Houses are first sitting,

unless, before the expiration of that period, it has been approved by a resolution of each House of Parliament.”

Proclamations of Emergency to last for eternity

But this two-month life-span for a Proclamation of Emergency unless approved by Parliament before the expiration period was amended by Act 10 of 1960 to allow Proclamations of Emergency to last for eternity-as our Proclamations seem to do, not only to last indefinitely, but to pile on one after another, without end.

Article 150(3), as amended, now reads:

“A Proclamation of Emergency and any ordinance promulgated under Clause (2) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance, but without prejudice to anything previously done by virtue thereof or to the power of the Yang di Pertuan Agong to issue a new Proclamation under Clause (1) or promulgate any ordinance under Clause (2).”

Under the original Merdeka Constitution, Parliament would have had to address its mind to the continued justification of the Proclamation and the Ordinances, as it should in view of the fact that Emergency situation is an unusual, extraordinary condition which can only be justified by actual existence of the facts or continued existence of the facts of emergency. But with the 1960 amendment, both Proclamation and Ordinances have indefinite life unless expressly revoked and annulled.

The perpetuation of a Proclamation of Emergency, when the emergency condition for which it was made had ceased to exist, is clearlyan abuse of power and unconstitutional.The Privy Council case of Teh Cheng Poh alias Char Moh v. The Public Prosecutor (1978), which declared the Security Cases Regulations 1975 unconstitutional and null and void, has relevance to this point. Although the Privy Council 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 justiciable,

But that any appeal to the Privy Council (if such appeals are still allowed)would stand a very good chance 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 the Privy Council decision on the question of the Security Are 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 Malaysia 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 organised 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 exercise 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 no “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 the Cabinet requiring them to advice the Yang di-Pertuan Agong to revoke the Proclamation.

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.

Proclamations unchallengeable in court

Following the Privy Council decision in the Teh Cheng Poh case, the DAP had decided to challenge the validity of the continued operation of the Proclamation of Emergency of May 1969 in the courts but was prevented from doing so by another Constitutional amendment in January 1979 which expressly ousted the court’s 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.”

The fact that the Government had to further amend the Constitution to make the Proclamation of Emergency non-justiciable is proof that the Government realises that it had committed “an abuse of discretion” in failing to revoke the Proclamation when the conditions for the Proclamation have ceased to exist.

A Proclamation of Emergency is promulgated to deal with a specific emergency and should not be allowed to remain in force when the specific emergency condition has been ended.

There must be restrictions on the assumption and exercise of emergency powers, to ensure that a Proclamation of Emergency to deal with a specific emergency is not used to cover non-emergency situation or even different emergency. A different emergency situation require a separate and different Proclamation.

This is an important principle if democratic freedoms and the rule of Jaw principle in Malaysia are to be respected and upheld. In fact, the courts in Malaysia should have 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.

I believe the Government, and in particular the Attorney-General’s Department, is aware of this important principle, which makes the failure of the Government to revoke the Four Proclamations of Emergency even more inexplicable.

For instance, the Government had to declare for the State of Kelantan on 8th November 1977, before imposing NOC rule in Kelantan, although there is a subsisting national Emergency Proclamation of 15th May 1969, and the Government could have asked Parliament to make emergency legislation for Kelantan without having to make a different Emergency Proclamation.

This shows that the Government and the Attorney-General’s Department are aware of the impropriety, unconstitutionality and illegality of using one Emergency Proclamation issued for one specific purpose for other purposes.

But with the amendment to the Constitution in January 1979 making the Proclamation of Emergency unchallengeable in the courts in any form, the Government and the Attorney-General would be encouraged to regard one Proclamation of Emergency as a blank cheque to do as and what they like, and to deal with situations which were never in the mind of the Government when issuing the Proclamation.

If this is not abuse and misuse of power, I do not know what is. No wonder we find in Malaysia so many instances of those in authority misusing and exceeding their powers and authorities.

Misuses of immigration powers by Harris Salleh

For instance, the Immigration Act gave the State Governments of Sabah and Sarawak power to restrict entry of West Malaysians into East Malaysia to protect Sabah and Sarawak labour market, though Section 67 provided that no restriction shall apply to a Malaysian citizen entering a East Malaysian State “for the sole purpose of engaging in legitimate political activity”, The Sabah Chief Minister, Datuk Harris Salleh, has misused his immigration powers to ban me and Sdr. Lee Lam Thye from entering Sabah for fear that with our entry, Berjaya would suffer severe electoral reverses in the Sabah State general elections, to the extent that Datuk Harris Salleh would even lose his Chief Ministership!

On one occasion, Datuk Harris Salleh would say that the ban was for my personal safety and security; on another occasion, he would talk of the security of Sabah – but all Malaysians know that all his excuses are no more than political cowardice camouflaged!

Basis of Federalism could be destroyed by unfettered Emergency Proclamation and powers

It is indeed inconceivable that there could be unfettered Emergency Proclamation, in that it would be a blank cheque for the invocation of Article 150’s emergency powers to deal with any situation and condition never originally envisaged in the original Proclamation. For if this interpretation is right, then any Proclamation of Emergency and invocation of Article 150s emergency powers could destroy even the basis of Federalism of Malaysia, without any remedy in the Courts.

Article 150 confers a wide range of extraordinary executive and legislative powers. For instance, Article 150 provides that while a Proclamation Emergency is in force, the Federal Executive’s authority extends to State matters and “to the giving of directions to the Government of a State or to any officer of authority thereof” (Art. 150(4) ); and Parliament could legislate on any matter regardless of whether it is within the Federal List, State List or Concurrent List, and that normal constitutional requirements of consultation with a State Government or the obtaining of the consent or concurrence of any other body are inapplicable (Art. 150(5))- although Parliament is not permitted to extend its normal powers with respect to “Islamic law or the custom of the Malays, or with respect to any matter of native law or custom in the State of Sabah or Sarawak.”

It is no use for the Government to reply that the Government is composed of reasonable and fair-minded men, for we must be more concerned with a Government of Laws than a Government of Men. I would want to get clarification from the Prime Minister, whether he is of the view that legally, constitutionally, just because there is a Proclamation of Emergency, regardless of the emergency condition which gave rise to it, the Government, through Parliament, could legislate the State powers and rights out of existence?

We should also note that the most significant power given by Article 150 is in Section 6 which empowers emergency legislation which are contrary to other provisions of the Constitution, except provisions relating to religion, citizenship or language. The fundamental liberties and all other provisions in the Constitution become fair game!

It is indeed a horrendous thought if we have such a Monstrosity ofa Constitution in our hands.

Call for Public Inquiry into shooting of two innocent rubber tappers in Sungai Chalit

Last January, in arguing that the 1969 Proclamation of Emergency would have to continue because there still exists a ‘grave emergency’, the Law Minister and Attorney-General, Datuk Seri Hamzah Abu Samah, referred to recent security incidents, and I have no doubt that the front-page reports in yesterday’s press about “Three Reds shot dead in estate” (New Straits Times Headline) in a rubber estate at Sungai Chalit near Raub on Monday, June 25, would also be quoted as further authority in this debate.

The reason why Parliament must constantly review Proclamations of Emergency, which in the 22 year history of the Malaysian Parliament has never been done, is to discharge our parliamentary responsibilities and duties to ensure that emergency powers have not been misused or abused, that the emergency situation should be brought to an end in view of termination of emergency conditions.

According to press reports, the Mentri Besar of Pahang, Encik Abdul Rhim bin Abu Bakar said the security forces shot dead three “hungry” terrorists in a skirmish in a rubber estate at Sungai Chalit near Raub, and that the killings was the biggest single success in the State so far this year.

The dead were named as a woman, Yew Kwai Chai, 20, a 60-year old man Lai Kwai and a 17-year old youth, Lai Chee Kong and Mentri Besar said they were killed at a spot about 200 yards from where a security force member was killed by terrorists on June 2.

Encik Rahim said the incident occurred at 9.45 a.m. when a security forces patrol came across a group of five uniformed and armed terrorists. The soldiers challenged the terrorists who retreated and shot at the troops.The soldiers returned fire and dropped two of the terrorists. The security forces also recovered four haversacks containing a total of 15 hand grenades, six plastic explosives, 90 Vietnam spikes used as booby traps, 48 small torchlight batteries and several Communist documents.

Encik Rahim said it was possible that the five terrorists had emerged from their hideout to look for food.

In actual fact, the 60-year-old and 17-year old men, are father and son, and rubber tappers in that locality living in Sungai Klau nearby. The whole village of Sungai Klau are incensed not only that both of the innocent tappers had been killed, but that they had been branded as communist terrorists.

I have caused a check on the two persons and the incident, and I am more than satisfied that the security forces have mistakenly killed the father-and-son rubber tapper couple, in their chase of communists the area.

Both Lai Kwai and Lai Chee Kang were tapping in the small-holding of one Lai Lim, at about 9.40 a.m., when they heard shooting nearby. Lai Lim, who was mixing weedicide, then told both Lai Kwai and Lai Chee Kang to leave the area, and he himself got on a scooter and left before them, who were on bicycles. When Lai Lim came out to the Jalan Sg. Chalit, he met security forces who asked him whether he had seen any communists. Both Lai Kwai and Lai Chee Kang were subsequently announced as killed by security forces as communist terrorists. There are some suspicious circumstances, as their tapping knives were found near the road-side, showing they were coming out from the smallholding, while their corpses were further inside the smallholding, from where the sound of shootings came, and that was where the security forces claim they were sighted and killed.

The proprietor, Lai Lim, had told the Special Branch and the OCPD of Raub about what happened, and he understandably, is very agitated by the killing of his two employees. But the whole Sungai Klau village is also very agitated, not only at the killing, but also at branding two innocent tappers as communist terrosists shot while foraging for food. I am told that on the night before the killing, Lam Kwai was at his old coffee-shop haunt in Sungai Klau playing mahjong – and could not possibly be “starving away” at some hideout because of a 24-hour curfew, as claimed by the Pahang Mentri Besar.

In all probability, the security forces sighted five communists and in the chase, both tappers, were innocently killed. If this was the case, then the Government should be prepared to admit its mistakes, and pay the bereaved family just and fair compensation – and not add insult to injury by branding the term of ‘communist terrorists’ on to them.

For the sake of close people-security forces relationship, I call on the Government to hold a public inquiry, and to act justly and fairly. In the event of government’s preparedness to pay the bereaved family a just and fair compensation, and to clear their name, I volunteer to contact the bereaved family to effect a settlement, which could conduce to the lessening of tension now fairly high in Sungai Klau.

There is also great fear in the area, for the people of Sungai Klau do not feel safe. Even with curfew permits to go to work to tap, they could be killed in the same way as Lai Kwai and Lai Chee Kong, and branded as communist terrorists’. I call on the Minister of Home Affairs, Tan Sri Ghazalie Shafie, to give this matter his personal attention and to restore calm and peace to the area. As for the third killed, the 20-year-old girl, nobody in Sungai Klau knows her, and the security forces may be right about her.

While fully admitting that Malaysia faces a security problem, not only from the communist challenge, but also from the refugee influx, I cannot agree that the Proclamation of May 15, 1969, or any other of the three Proclamations should be continued, for firstly, the May 15,1969 Proclamation was issued to deal with the May 13 situation which had been done with the restoration of Parliament in February 1971, and never meant to deal either with the communist challenge from the jungles, or to the Vietnamese refugee/illegal immigrant influx, which was never thought of in 1969.

Secondly, Government leaders had never varied from their contentionto foreign investors abroad that the securitywhether in the country orsituation was well under control.For instance, on 19th April 1974, the Home Affairs Minister, Tan Sri Ghazalie Shafie, in reply to my question, said “the security situation is under control and not deteriorating.”

On 6th February, 1976, the Prime Minister, Datuk Hussein Onn, told a press conference: “The security situation is well under control- there have been bombings and shootings but they do not warrant a state of panic.”

On 13th August 1976, the Home Affairs Minister, Tan Sri Ghazalie Shafie, told a press conference that the communist terrorists were very weak – “so weak that no foreign powers were prepared to help them with arms.” Tan Sri Ghazalie said at that press conference that foreign powers would only give weapons to insurgents when they had gained a certain momentum in their struggle. He said: “No power in the world is supporting the Communist Party of Malaya by sending them guns. They (the CPM) are very weak…we are on top!”

On 13th October 1977, the New Straits Times reported the Mentri Besar of Pahang, Datuk Muhamed as Jusuh, as saying that the security situation in Pahang had improved considerably in the last few years. He said: “We have turned the tide against the terrorists.”

And of course, in May 1978, the Deputy Prime Minister, Dr.Mahathir bin Mohamed, went abroad to woo investors with the assurance that there was no security problem in Malaysia.

Thirdly, the security problem faced by Malaysia could be ably handled and tackled under Article 149 of the Constitution, conferring special powers to deal with subversion, organised violence and crimes prejudicial to the public.

Article 149, which has been amended twice, provides that: “If an Act of Parliament recites that action has been taken or threatened by any substantial body of persons (whether inside or outside the country):

“(a) to cause, or to cause a substantial number of citizens to fear, organised violence against persons or property; or

“(b) to excite disaffection against the Yang di-Pertuan Agong or any Government in the Federation; or

“(c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence;or

“(d) to procure the alteration, otherwise than by lawful means, of anything by law established; or

“(e) which is prejudicial to the maintenance or the functioning of any supply or service to the public or any class of the public in the Federation or any part thereof; or

“(f) which is prejudicial to public order in, or the security of, the Federation or any part thereof

“any provision of that law designed to stop or prevent that action is valid notwithstanding that it is inconsistent with any of the provisions of Article 5 (liberty of the person), Article 9 (prohibition of banishment and freedom of movement) or Article 10 (freedom of speech,assembly and association.”

Such a law under Article 149 would also be valid even if it is outside the legislative power of the Federal Parliament and State Governments need not be consulted in the enactment of such law.

Article 149 is clearly meant to confer special powers on the Government to deal with a grave security situation, by passing legislation contrary to Articles giving guarantees to fundamental liberties- but short of a ‘grave emergency’, where legislation can be passed under Article 150 contrary to all Constitutional provisions, except for those pertaining to language,religion, citizenship.

I ask the Prime Minister whether it is not true that all the powers that the Government needs to deal either with the communist problem or with the refugee question could be founded on Article 149, without having to resort to Article 150 under the texture of Emergency.

In asking for the annulment of the Proclamations of 1964, 1966, 1969 and 1977, I am asking that the State be divested of its powers to deal with organised violence, subversion or crimes prejudicial to the public, for these powers are founded or could be founded on Article 149 of the Constitution.

Fourthly, if the Government is of the view that either the communist problem or refugee problem is of emergency proportion, then a separate Proclamation of Emergency should be made.In allowing four Proclamations of Emergency to continue, whose original circumstances have ceased to exist,
we are not only making a mockery of Malaysia and democracy in Malaysia (for where do we hear a country living under four permanent Proclamations of Emergency), Parliament is also guilty of dereliction of duty, for Parliament is entrusted by the Constitution to be one of the two constitutional avenues to bring outdated and outmoded Proclamations of Emergency to an end.