Where are the usual defenders of the constitution?

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KUALA LUMPUR, Oct 27 – Are we in a constitutional crisis? Are the constitution only supreme when it suits our interests? Where are those usual suspects who defend the constitution every time there was a question on constitutionality? Isn’t there a disregard of the constitution today?

Article 40(1) of the Malaysian Constitution clearly states that:

“In the exercise of his functions under this Constitution
or federal law the Yang di-Pertuan Agong shall act in accordance
with the advice of the Cabinet or of a Minister acting under the
general authority of the Cabinet, except as otherwise provided
by this Constitution; but shall be entitled, at his request, to any
information concerning the government of the Federation which
is available to the Cabinet.”

Last Friday, the cabinet ministers along with Prime Minister Tan Sri Muhyiddin Yassin had come together to make one tough decision; to declare a state of emergency due to the COVID19 pandemic that is getting worse day by day. A proactive move ahead of what the cabinet perceived as threatening the security, the life of the economy and eventually public order.

Following the cabinet decision, the Prime Minister, accompanied by a number of senior ministers, ministers, the Director General of Health, the Chief of the Army, the Attorney General and the Inspector General of Police went to see the Yang di-Pertuan Agong, the King at His Majesty’s palace in Pahang.

A source told NMT that aside from being advised by the Prime Minister and ministers, the His Majesty was also advised about the status of the COVID19 pandemic handling by the Health DG. Whilst the health system is still capable of handling the current situation, a need for more drastic intervention is imminent.

The Health DG had recently tweeted about how mental & physical fatigue are setting in with the health frontliners. He even mentioned that some are ready to quit.

He had earlier warned that the daily cases will reach 4-digits towards the end of October.

And true enough, on October 24, we hit 1228.

Image may contain: text that says "STATUS TERKINI COVID-19 DI MALAYSIA 24 OKTOBER 2020 34.83% 25,742 Jumlah kes keseluruhan Total confirmed cases 0.86% Kes baharu New cases 1,228 Jumlah kes aktif Total active cases 8,966 Jumlah kematian Total deaths 221 Jumlah kes sembuh Total recovered cases 16,555 Kes tempatan 1217 Kes import 11 Jumlah 92 Termasuk 31 pernalasant Kematian baharu New death 7 Kes sembuh baharu New recovered cases 671 Sumber: CPRC Kebangsaan comms@moh"

In the first and second wave of COVID19 spread, we managed to contain the number of cases to below 10,000 cases from March to September. October number of cases had surged to over 16,000 in just within one month.

Another issue of utmost importance where His Majesty had also been advised is the issue of security, mainly around the illegal immigrants situation. Illegal immigrants have contributed to high numbers of COVID19 in the country. The influx of illegal immigrants into the country also require the army and navy to step in. For that to happen, an emergency declaration is required.

The police force, border controls and immigration department have been struggling to handle the surge of arrivals of these illegal immigrants.

Those caught by the authority are put in ever-crowding detention centers and prisons where unfortunately, some of them are carrying the COVID19 virus. As the spread started to get out of the detention centers and prisons, Kedah and Sabah became a red zone.

Finance Minister, Tengku Zafrul Aziz was also present in the meeting with Hi Majesty to advise on the life of the economy.

A senior lawyer who wished not to be named told NMT that as far as the constitution is concerned, the Prime Minister and the Cabinet had done the necessary to advise His Majesty for the emergency to be declared. It is by the constitution that His Majesty must then act upon the advice of the cabinet, as per Article 40(1).

“We are a Constitutional Monarchy and therefore the Constitution is supreme and must be adhered to,” says the senior lawyer.

Online portal MalaysiaKini reported that the Speaker of the Dewan Negara, Tan Sri Rais Yatim had questioned the Attorney General on why he had remained silent on the constitutional disregard.

“Why didn’t the attorney-general raise the issue that the mandatory Article 40 had been set aside?

“Isn’t this the thrust of a constitutional monarchy?” the portal quoted Rais.

There had been constitutional debates recently on whether the King must accede to the request of the cabinet to declare state of emergency with most stating that we are not at the stage where emergency declaration is required.

Article 150(1) states 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 Federation or any part thereof is threatened,
he may issue a Proclamation of Emergency making therein a
declaration to that effect.”

However, article 150(2) states that:

“A Proclamation of Emergency under Clause (1) may be
issued before the actual occurrence of the event which threatens
the security, or the economic life, or public order in the Federation
or any part thereof if the Yang di-Pertuan Agong is satisfied that
there is imminent danger of the occurrence of such event.”

So an emergency can be declared before the actual occurrence of the event which threatens the security, the economic life or public order in the Federation or any part thereof, and there had been enough evidence especially in few states where there is imminent danger of the occurrence of such event.

Another imminent danger is the Batu Sapi election and the Sarawak state election that must be done by middle of 2021. Learning from the Sabah state election in September, another wave of COVID19 spread is imminent. Only a state of emergency can stop them from happening.