Malaysia : The power of cabinet

 

The question of the power of cabinet in Malaysia is explained.

Here is the explanation by text which is copied from the YouTube page.

CAN THE CABINET REVOKE EMERGENCY LAWS? The answer is NO. During the debate, the Minister of Law startled everyone. He said, ‘The Cabinet had revoked the Emergency (Essential Powers) Ordinance 2021 on 21 July 2021’. He is wrong. Why? There are 5 reasons why the Cabinet cannot revoke Emergency Laws. WHAT IS THE DIFFERENCE BETWEEN ‘REVOCATION’ AND ‘ANNULMENT’? ‘Revocation’ means ‘cancellation’. ‘Annulment’ means ‘making void’. ‘Annulment’ means something never really existed in law. SO WHAT IS THE ‘LAYING BEFORE PARLIAMENT PROCEDURE’? The basic point is, if the Government wishes to declare an Emergency, it must convince the King one of three ‘emergency conditions’ exist. If the King is satisfied with the proof of these, the King then does three things: First His Majesty ‘Proclaims’ the Emergency. Then he ‘Promulgates’ laws. Then he asks Parliament to examine both to approve them. The Proclamation of the Emergency, and any Emergency laws – called ‘ordinances’ – require parliamentary permission. Parliament can either accept or reject them. The Constitution gives them that power. That power and procedure is called ‘the Laying Before Parliament procedure’. It is in Article 150(3). His Majesty says so at the bottom of both the Proclamation and the Emergency Ordinance. WHO CAN ‘REVOKE’ It is only Parliament. Why? REASON-1 Only Parliament can ‘make’, and ‘unmake’ the law. Article 44 of the Federal Constitution says so. It states: ‘The legislative authority of the Federation shall be vested in a Parliament.’ That is further clarified by Article 66 and 88. REASON-2: IF ORDINANCES HAVE THE SAME POWER AS A PARLIAMENTARY ACT, ONLY PARLIAMENT CAN REVOKE THEM? Start with Article 150 (2C). It says the laws made, ‘under clause (2B) shall have the same force and effect as an act of Parliament …’ REASON-3: We read Art. 150(2C) again. It says, an Emergency law, ‘promulgated under clause (2B)… shall continue in full force and effect… until it is revoked or a annulled’ – and then listen to the following words please – ‘under clause (3). What does clause 3 say? It says, ‘…any Proclamation of Emergency and any Ordinance promulgated under clause (2B) shall be laid before both Houses of Parliament, and if not sooner revoked, shall cease to have effect if ...[ both houses annul] such proclamation or ordinance,….’. REASON-4: A LAW CANNOT BE CAPRICIOUSLY MADE AND CAPRICIOUSLY REVOKED The cabinet says it ‘revoked’ – presumably secretly – because all cabinet proceedings are a secret — the Emergency laws on 21 July 2021. Someone has erroneously advised the Cabinet the power of ‘revocation’ is with the Cabinet; and the power of ‘annulment’ is with both houses of parliament. First, the Cabinet cannot make the law, and then decide to revoke them as and when they feel like it. Why? Because the Cabinet will make one law today: ‘All factories are to be classified as essential services’. Tomorrow, they will say, ‘All factories are not essential services’. Second, that is capricious. It destroys the economy. It makes the law unstable. And uncertain. That is why the law requires both the Proclamation and the Emergency Laws to be laid before Parliament. Not hide it away and have it secretly revoked. REASON-5: AN EMERGENCY LAW HAS THREE FATES Any Emergency law can suffer three fates. * a. It can be ‘revoked’ [it was valid, but it is now cancelled], or * b. It can be ‘annulled’ [‘It was never valid in the first place’] or * c. It can die a natural death by a lapse of 6 months from the last day of the Emergency: [Art. 150(7)]. It has a constitutional ‘shelf life’ of 6 months from the last day of Emergency. So even if the Emergency is lifted on 01 August 2021, all Emergency Laws can carry on until 01 February 2022. REASON-6: ARTICLE 150 DOES NOT GIVE THE CABINET THE POWER TO ‘REVOKE’ ANY LAW Can the Minister and the Cabinet show us such a clause? There is none. REASON-7: THE GAZETTE POINT This point is illustrated by a true story. The case was Inspector General of Police and Another v. Lee Kim Hoong [1979] 2 MLJ 291 at page 293. IN CONCLUSION What on earth prompted the Minister of Law to argue that the Cabinet can take on the role of Parliament? Isn’t this a breach of the separation of powers principle? How can we allow these guys to run our Government? GRATITUDE: I thank En. Samad Hassan, the sacrificial research and scripting of Miss KN Geetha, Mr. JD Prabh Singh and Mr GS Saran.