Have you ever gone out of your house at night to find something to eat at your local nasi kandar restaurant? Or perhaps, watch a late night movie that ends at 2 or 3 am in the morning. If you are so inclined, you might also spend your night in a pub, drinking away until the wee hours of the morning. I am sure you would have personally done either of these things. We can go out at night because it is relatively safe to do so. We are enjoying peace, we are not at war.

Indeed, this is the image we project to the world, that we are a peaceful, moderate country with a Muslim majority, an Asian cornucopia that truly reflects the continent.

What if I told you that in law, Malaysia is currently under a state of emergency?

In general terms, a state of emergency is a declaration that may suspend some normal functions of the executive, legislative and judicial powers. It can suspend rights and freedoms, even if guaranteed under the constitution. Such declarations usually come during a time of disaster, during periods of civil unrest, or following a declaration of war or situation of international or internal armed conflict.

 Article 150 of the Federal Constitution provides that if the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the country is threatened, he may issue a ‘Proclamation of Emergency’ making therein a declaration to that effect.

 Once a state of emergency is declared, the Yang di-Pertuan Agong may promulgate ordinances (known as ‘emergency ordinances’) for any matter in which Parliament can make laws on. What this means is that laws can be passed without going through Parliament, and such laws will have effect as an Act of Parliament and continue to do so until it is revoked or annulled.

Most importantly, any ordinances passed during an emergency is said to be valid even if it is inconsistent with the provisions of the Federal Constitution, unless that inconsistency is in relation to religion, citizenship or language. An emergency ordinance may suspend our fundamental liberties under the Constitution and this would be valid.

We are actually in more than one state of emergency. According to Minister in the Prime Minister’s Department, Dato’ Nazri Aziz in a speech in Parliament, there are two nationwide declarations of emergency; in 1964 because of the confrontation between Malaysia and Indonesia and in 1969 as a result of the 13 May 1969 race riots. Meanwhile, there was one declared in Sarawak in 1966 due to a political crisis there and another one in Kelantan in 1964 as result of a political crisis in that state.

The Federal Constitution provides that the YDPA has the power to issue different proclamations of emergency for different situations, regardless of whether there is already another proclamation in operation.

This would mean that we have been under a continuous state of emergency from 1964, amounting to some 47 years of emergency! You would not have guessed it from the tourism advertisement blitz that we are continuously bombarded with.

In practice, anyone can see that we are not in any state of emergency. There is no curfew, no clear and present danger to our persons, nothing that threatens our security, economic life or the public order of this country. The British have left decades ago, the militant communists have given up their struggle and we are not at war with anyone. It is therefore impossible to objectively justify the continuance of not one, but at least two if not four declarations of emergency.

An emergency can end in two ways. The first if it is revoked by the Yang di-Pertuan Agong. As with most other matters, here the Yang di-Pertuan Agong shall act shall act in accordance with the advice of the Cabinet. The second is if both Houses of Parliament pass resolutions annulling the proclamation of emergency.

The minister was quizzed in Parliament as to why the emergency is still in operation. His answer was that an emergency may arise at any time and it would be beneficial for the government to continue the emergency situation as this would mean that certain laws made during the emergencies will end and this would make cause difficulties for the government to control crimes and matters relating to race, religion and terrorism.

With due respect, hardships that the government may have to endure with the lack of emergency powers would not be a justifiable reason to continue the emergency. The Federal Constitution envisages a situation where there is a present or imminent threat, not a threat that may or may not arise in the future. When such threats do not exist and is not imminent, then the factors justifying an emergency no longer subsists and the emergency should end.

The emergency must end. There is no two ways about it. The powers vested to the Executive during an emergency are wide and arbitrary. These powers must only be exercised when situations of emergency arise. To use such powers when we are not in fact in an emergency situation would amount to abuse.

It is time we do something. It is time to pressure the Executive to advise the Yang di-Pertuan Agong to revoke the emergency declarations. It is also time to lobby our Parliamentarians to move a motion to end the emergency.

How long can we live in a state of denial that we are a state in emergency?

*this article was first published for The Star’s iPad application on 28 July 2011 for my fortnightly column, ‘A Humble Submission’.

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