THE by-election for the Batu Sapi parliamentary seat in Sabah, caused by the untimely death of respected former Law minister Datuk Liew Vui Keong, is scheduled for Dec 5. Nomination Day is Nov 23.

Given the fact that the constituency is a Covid-19 red zone and Sabah’s tally of cumulative cases on Nov 2 was 15,962 with 117 deaths, it is understandable that calls are being made to cancel or postpone the by-election. There are fears that, as after the September state election in Sabah, the nation will again see a serious spike in the number of Covid-19 afflictions.

Well-intentioned though these calls are, they are unmindful of Article 54(1) of the Federal Constitution which requires that a casual vacancy in the Dewan Rakyat must be filled within 60 days. The Constitution must be obeyed in good times and bad times.

The Prevention and Control of Infectious Diseases Act 1988 (Act 342) and the National Security Council Act 2016 (Act 776) can be employed to impose health and safety requirements but cannot be utilised to cancel or postpone the Batu Sapi electoral exercise.

Our Constitution is the supreme law of the Federation and no ordinary law can violate its provisions.

What, then, can be done to avoid or mitigate the potential danger?

The leaders of all political parties could, in the broader national interest, agree to field no rival to Liew’s Parti Warisan Sabah.

If no independent candidate jumps into the fray, there will be no contest and no need for a vote. We have to wait until Nomination Day for this hopeful possibility.

In case there is a contest, the immediate mitigation measure should be for Parliament to amend the Prevention and Control of Infectious Diseases Act 1988 to give it more bite. However, given the fact that the parliamentary process requires passage in the Dewan Rakyat, Dewan Negara, assent of the Yang di-Pertuan Agong and gazetting in the Warta Kerajaan (Federal Government Gazette), this proposal may not be easy to implement in the short time remaining.

An alternative to a parliamentary amendment is to resort to subsidiary legislation. The minister concerned may, under subsection 11(2) of the Prevention and Control of Infectious Diseases Act 1988, make appropriate amendments to the existing Prevention and Control of Infectious Diseases (Measures Within the Infected Local Areas) Regulations 2020 to regulate travel and gatherings and tighten health measures.

Some have suggested that to avoid infections, the entire electoral exercise, including voting, should go online. This is technically challenging and legally problematic as it would amount to an unintended discrimination, contrary to Article 8(1), against those who are poor, uneducated or living in areas where digital connectivity is lacking.

The surest but most politically controversial measure to avoid the impending danger is for the Prime Minister to advise the Yang di-Pertuan Agong to declare an emergency in Sabah or in parts of Sabah. Under Article 150(1) an emergency can be declared “in the Federation or any part thereof”. The emergency could be confined to Sabah or specific regions of Sabah and will not affect the Federal Government or any other state. We can recall the localised emergencies in Sarawak on Sept 14,1966 and in Kelantan on Nov 8,1977, both aimed at resolving a political impasse.

An emergency proclamation by the Yang di-Pertuan Agong does not automatically suspend any institution or law. The Sabah Constitution, its government, its state assembly and all the rights of citizens can remain untouched. An emergency law by the Federal Government could be framed to suspend only the laws requiring the by-election and to permit effective tackling of the raging Covid-19 crisis.

However, resorting to an emergency is opposed by some on the grounds that a pandemic does not amount to an emergency. It is true that in Article 150(1) the term “emergency” is defined narrowly to refer to a grave threat in three sectors: security, economic life or public order. Though health or disease are not mentioned in Article 150(1), the Covid-19 pandemic can easily be seen as a grave threat to economic life.

Also, there are judicial decisions that define the concept of emergency broadly. In Stephen Kalong Ningkan v Government of Malaysia (1968) – a case from Sarawak – Lord MacDermott of the Privy Council held that “the natural meaning of the word itself is capable of covering a very wide range of situations and occurrences, including such diverse events as wars, famines, earthquakes, floods, epidemics and the collapse of civil government”.

It is clear, therefore, that due to the spiralling Covid-19 outbreak in Sabah, a “grave emergency” does exist, and the Prime Minister is justified in seeking an emergency proclamation for the postponement of the Sabah electoral exercise.

However, many people are apprehensive that an emergency proclamation could be abused or perpetuated long after the threat ceases. This is evidenced from the fact that Malaysia was under continuous emergency for 47 years from 1964 to 2011. To allay this fear, the proclamation of emergency could expressly provide for a time frame of, let us say, three or six months. Any Ordinances or Emergency Acts made under the proclamation should also contain a “sunset clause” providing for their expiration once the sands of time run out.

A further riveting issue is whether the power to proclaim or refuse to proclaim an emergency is a royal discretion (as in October) or whether the King is bound to act on prime ministerial advice?

One view is that Article 40(1) is generic and applies across the board. “In the exercise of his functions under the Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet”.

Article 40(1) is fortified by Article 40(1A). A wealth of case law confirms that the powers of the King under Article 150 are subject to the duty to act on advice. This means that though the formal declaration must come from the King, His Majesty acts on advice save in those situations “provided by this Constitution”. These situations are:

> Asking for any information in the possession of the Cabinet: Article 40(1).

> Appointment of the Prime Minister, dissolution of Parliament, and the requisitioning of a meeting of the Conference of Rulers: Article 40(2).

Delaying legislation by 30 days: Article 66.

Some special appointments: Articles 139 and 141A.

The second, royalist view of the King’s emergency powers is supported by the following arguments.

First, the subjective language of Article 150(1) – “If the Yang di-Pertuan Agong is satisfied that a grave emergency exists” – implies that the power to declare an emergency is personal to the monarch.

Second, under Article 150(8), His Majesty’s Proclamation and Ordinances are not challengeable in a court.

Third, the King’s duty under Article 40(1) to act on advice is qualified by the words “except as otherwise provided by this Constitution”.

Fourth, in Article 40(2) the King may act in his discretion in three explicit areas “and in any other case mentioned in this Constitution”.

The best legal minds in the country are engaged in this debate and a court case is pending. The riveting issue needs further discussion in a forthcoming column here.

This article was first appeared in The Star on 5 November 2020

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