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TUTORIAL 1: Question 13 Explain the scope and extent of power of the YDPA to

proclaim
emergency. Support your answer.

Under Article 150(1) the term emergency refers to threats to the


security, economic life or public of the federation or any part thereof. The
purpose of declaration of Emergency is to empower the Parliament and the YDPA
to take legislative action and enable the Executive to take measures to overcome
the Emergency. There no need not be actual violence or breach of peace, threat
or imminent danger is sufficient to declare for Emergency. A proclamation of
emergency may be issued even before the actual occurrence of the threat. In the
case of Stephen Kalong Ningkan v Government of Malaysia, the Privy Council
held that emergency include wars, famines, earthquakes, floods, epidemics and
collapse of civil government.
Article 150 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. The
language of Article 150(1) seems to imply that the proclamation of an
emergency is a discretionary power of the Yang di-Pertuan Agong under Article
40(2). Article 40(2) states that the Yang di-Pertuan Agong may act in his
discretion in the performance of three enumerated functions plus in any other
case mentioned in this Constitution. In the case of Public Prosecutor v Mohd Amin
Mohd Razali [2000] 4 MLJ 679, the court held that if the Parliament is sitting and
the Cabinet is in existence, the Yang di-Pertuan Agong exercises his powers on
advice. But if during a dissolution there is no Cabinet in existence to advise the
Monarch, then the King is empowered to issue a Proclamation of Emergency on
his own. Even if a caretaker government is in place, the caretaker governments
advice on national emergencies is not binding on the Yang di-Pertuan Agong.
In Teh Cheng Poh v PP [1979] 1 MLJ 50, Lord Diplock summed up the
constitutional position must adequately: When one finds in the Constitution itself
or in Federal law powers conferred upon the Yang di-Pertuan Agong that are
expressed to be exercisable if he is of opinion or is satisfied that a particular
states of affairs exists or that particular action is necessary, the reference to his
opinion or satisfaction of the members of the Cabinet or the opinion or
satisfaction of a particular Minister. In the light of the above, it is submitted that
the proclamation of emergency by the King is not free of the constitutional
requirement to act in accordance with the advice from the Prime Minister under
Article 40(1). The Yang di-Pertuan Agongs power to declare the emergency is not
a discretionary power. The power to declare emergency is a federal power. It
belongs to the Yang di-Pertuan Agong and not to the State Sultans or Governors.
In conclusion, the Yang di-Pertuan Agongs power to declare emergency is
not a discretionary power instead it is a federal power.