Emergency powers

Arowosaiye, Yusuf Ibrahim and Masum, Ahmad and Ali Mohamed, Ashgar Ali and Ahmad, Muhamad Hassan (2022) Emergency powers. In: Constitutional Law in Malaysia. LexisNexis Malaysia Sdn Bhd, Kuala Lumpur, Malaysia, pp. 679-710. ISBN 978-967-270-163-7

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Abstract

It is common to include emergency powers in the constitution of most modern democracies. Emergency powers are primarily meant to deal with exceptional circumstances in the society as a measure to mitigate and respond to these emergency situations while securing the lives and properties of the people. The constitution as the organic law of the state, guides the legal and political order of the society through the rule of law. It also guarantees the fundamental human rights of the people. Exceptional situations may constrain constitutionalism to hold sway as expected. As such, democratic development and constitutionalism may be temporarily destructed during emergencies and some provisions of the constitution may be suspended for the common interest of the society. The implication of vesting emergency powers in the executive or legislative arm of the government, as the case may be, implies that the evocation of emergency powers may result in the suspension of the constitutional order and the derogation of the provisions that ordinarily guarantee the fundamental rights of the citizens. An extraordinary regime of emergency is justified on the ground that constitutionalism and rule of law are not sustainable in the exceptional situation of emergencies. It is therefore on record that the suspension of the normal legal order during emergencies usually presents an opportunity for the abuse of the extraordinary emergency regime especially by leaders who are desirous of consolidating on their rein in power. Unfortunately, judicial complacency and absence of courage to review states’ actions and undeserving claims of ‘state of emergency’ contribute to the blatant abuse of emergency powers. Today, the use of emergency powers poses daunting challenges to the development and nourishment of the International Human Rights Law (IHRL). Constitutional theorists are divided about what constitutes public emergency and therefore international jurisprudence on state of emergency remains conflicting and contradictory. Despite the implications of the use of emergency powers, ironically about 90 percent of countries in the world today have emergency powers provisions in their constitutions to cater for unpredictable occurrences especially when the stakes are high. Malaysia constitution, being the subject of this chapter, has provisions for the exercise of emergency powers to deal with critical situations. Like other common law countries, Malaysia has her own share of the legal historical antecedent of the evolution and the development of the emergency powers which shaped the features of its use and the perpetual threat to civil liberties in Malaysia as a result of the amorphous nature, scope and use of these powers. Although the exercise of emergency powers under the Malaysian constitution is not without constitutional checks, the effectiveness of these checks has been called to question especially in situations where the judiciary is not being consistent in terms of judicial activism to check the excesses of the executive that is more prone to authoritarian rule through the abuse of emergency powers. Malaysian experiences in the pre-independence and post-independence epochs almost set the stage for a perpetual operation of emergency powers. The declaration of emergency throughout Malaya in 1948 following the event of communist insurgency by the Communist Party of Malaya (CPM) and the 1951 assassination of the Governor, Sir Henry Gurney could not be handled by the conventional constitutionalism and hence the recourse to the emergency powers. These historical events revealed the downsides of the use of emergency power in terms of its devastating impact on civil liberties, human life, property, and the rule of law. Most unfortunately, this influenced the future outlook of the use of emergency powers under the Malaysian constitution, her political order and development. In view of the above backdrop, this chapter seeks to examine the nature, and scope of emergency powers under the Malaysian constitution and its impact on the rule of law and civil liberties. No doubt, derogation of civil liberties which is incidental to the emergency powers when states employ extraordinary powers to address threats to national security, usually occasion systemic and unjustified human rights abuses by overzealous apparatus of the state. To what extent does the Malaysian constitution safeguard such occurrence and what is the attitude of government to the infraction of fundamental human rights of the citizens during emergency regime? The chapter will interrogate the extent to which emergency provisions are inclusive and the constitutional validity of the various declaration of emergency in Malaysia. To achieve this objective, the chapter calls in aid statutes, constitutional instruments, and case law from Malaysian legal order and other common law countries with similar emergency powers regimes. The chapter concludes with a reflection on emergency powers under the Malaysian constitution and a call for the review of emergency powers in Malaysia to strengthen liberal democracy, constitutionalism, rule of law and the protection of civil liberties.

Item Type:	Book Chapter
Uncontrolled Keywords:	Federal Constitution, Emergency Powers.
Subjects:	K Law > K3165 Constitutional Law
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button):	Ahmad Ibrahim Kulliyyah of Laws > Department of Civil Law Ahmad Ibrahim Kulliyyah of Laws
Depositing User:	Dr. Muhamad Hassan Ahmad
Date Deposited:	13 Mar 2023 16:02
Last Modified:	13 Mar 2023 16:02
URI:	http://irep.iium.edu.my/id/eprint/103977

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