JULY 30 — Dick the Butcher’s famous quote from Shakespeare’s Henry VI, "The first thing we do, let’s kill all the lawyers” is known by almost everyone.

Yet forgotten by almost everyone, by the look of things.

Almost everyone has a lawyer-like opinion on the legal debate raging in the country. It got more intense yesterday after the Prime Minister’s Office (PMO) maintained that Prime Minister Tan Sri Muhyiddin Yassin and de facto law minister Datuk Seri Takiyuddin Hassan had observed and followed all the due processes under the Federal Constitution when announcing the revocation of the Emergency Ordinances (EOs) on Monday. 

Prime Minister Tan Sri Muhyiddin Yassin attends the second day sitting of the Special Meeting of the Third Session of the 14th Parliament at Parliament in Kuala Lumpur, July 27, 2021. — Bernama pic

According to the statement, Muhyiddin had written a letter to the Yang Di-Pertuan Agong (the King) on July 23 advising the ruler to revoke the Emergency Ordinances (EOs), and again in an audience on July 27.

"The government is of the view that all these actions taken are orderly and in accordance with the provisions of the law and the Federal Constitution,” it said.

The statement further said that the PMO had on July 22 received the draft of the Emergency (Repeal) Ordinance 2021 which was prepared by the Attorney General’s Chambers (AGC). 

The draft Ordinance stated that all the EOs assented to by the King during the Emergency which began on Jan 11 will be cancelled effective July 21.

On top of that, the statement said that the prime minister had explained the government’s view that the EOs need not be debated in Parliament as the Cabinet had advised the King to revoke them.

Like almost everyone, I have my lawyer-like view on this. I agree that, reading clauses (2C) and (3) of Article 150 of the Federal Constitution together, the EOs can be revoked or annulled before they are laid before both Houses of Parliament. Similarly, the Proclamation of Emergency before its expiry on August 1.

But, have all the due processes been observed and followed, as asserted by the government?

Reference has been made by some to Lord Diplock’s judgment in Teh Cheng Poh v PP (1979):

"The power to revoke, however, like the power to issue a proclamation of Emergency, vests in the Yang di-Pertuan Agong, and the Constitution does not require it to be exercised by any formal instrument.”

There you read it: no formal instrument is required.

My lawyer-like view though, is this:

Lord Diplock was specifically referring to the proclamation of Emergency. This can be distinguished — as lawyers are prone to say — from an EO. 

By definition, a proclamation is a subsidiary legislation [section 3 of the Interpretation Acts 1948 and 1967 (Act 388)]. Despite Lord Diplock’s "no formal requirement”, there is a need for some formalities since a proclamation is law and a legal instrument. At the most minimum, it must be assented to, signed by the King and then published in the Gazette.

Proclamation takes effect upon publication in the Gazette.

An EO, on the other hand, is of higher status than a proclamation. It is primary legislation since it is an Act of Parliament [Article 150(2C)]. 

An Act of Parliament can be amended and repealed. It is amended by another Act of Parliament called an Amending Act. It is repealed by a Repeal Act.

Example: the Malaysian Anti-Corruption Commission (Amendment) Act 2018 [Act A1567] — the Amending Act is identified by the capital ‘A’ followed by the number, like A1567 — amends the Malaysian Anti-Corruption Commission Act 2009 [Act 694] — the Principal Act identified by the number only, like 694 — in 2018. An important amendment to Act 694 by Act A1567 is the new section 17A which extends the criminal liability of a commercial organization to its director or manager.

An example of a Repeal Act is the Anti-Fake News (Repeal) Act 2020 [Act 825], passed during the Pakatan Harapan government, which repeals the Anti-Fake News Act 2018 [Act 803]. Note that a Repeal Act is identified by the number only, like the Principal Act.

On the same note, an EO can be amended by an Amending Ordinance, like the Emergency (Essential Powers) (Amendment) Ordinance 2021 [PU(A) 151/2021] which amends the Emergency (Essential Powers) Ordinance 2021 [PU(A) 12/2021]. Note that EOs are identified by PU(A) followed by the number and year, like PU(A) 151/2021.

If an EO is to be revoked — to revoke is to repeal [section 3 Act 388] — it is to be revoked by a Repeal Ordinance. This explains why a draft Emergency (Repeal) Ordinance 2021 was prepared by the AGC. 

If this Repeal Ordinance were to be assented to, signed by the King and then published in the Gazette, it would have revoked the EO or EOs, depending on the provisions in the Repeal Ordinance.

So there you have it. In my lawyer-like view, the processes to revoke the EOs have not been completed.

Even if the government were to maintain that all the due processes have been observed and followed, then the repeal of the Emergency (Essential Powers) Ordinance 2021 would have been problematic since section 11(a) would no longer be the law. The section says:

For so long as the Emergency is in force —

(a)    the Prime Minister and the Cabinet existing immediately prior to the issuance of the Proclamation of Emergency on 11 January 2021 who have been conferred the executive functions shall continue to exercise the executive authority of the Federation and such other persons who have been conferred the executive functions by law shall continue to exercise such functions

If the provision is repealed before the special sitting of Parliament on July 26 — on July 21 as announced by Takiyuddin in Parliament — in which authority is the executive authority of the Federation vested until the expiry of the proclamation?

It’s a conundrum.

*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.