1

CHAPTER 1: THE INTRODUCTION

1.1 Definition
The term Emergency comes from the Latin word means a condition, similar to a state of
wars, in which some ordinary processes of government may be altered or suspended to
deal with an unforeseen occurrence or threat. It also been defined as a state of matters
calling for drastic actions and emergency powers have been provided for to deal with
such critical situation.1 The emergency power used to arise on account of wars, civil
unrest, economic condition, natural disasters such as floods and earthquakes or other
events that may imperil a nation. Extraordinary power are undoubtedly needed to deal
with extraordinary situations, and in most instances, they cease to be exercisable once the
threat is alleviated. Beside that the Federal Constitution cant used in disturbance and
danger. So that the Federal Constitution gives to another power to take part in
Constitution that mine the martial law takes the part in Federal Constitution.
1.2 The Origin and Development of Emergency Power
The provisions of emergency in the Federal Constitution can be traced to the insurgency
war against communist terrorist after World War II. Indeed the Reid Commission itself in
its report stated that one of the aims of the provision was to tidy up the laws pertaining to
the emergency then. The original Constitution of the Federal of Malaya was conceived
against a backdrop of Communist guerrilla warfare. A state of emergency had existed
since 1948 and the Constitutional Commission recommended certain emergency
provisions which were incorporated almost in toto into the Constitution.2
The provisions pertaining to emergency and subversion in the Federal Constitution (arts.
150 and 149) today have been amended many times. The existing provision has been the
result of a radical transformation of the original format. Compared with the original
provision drafted by the Reid Commission which was already wide the present provision
1
2

ABDUL AZIZ BARI: Malaysian constitution a critical introduction (page 183)

WU MIN AUN: The Malaysian Legal System (page 307)

2
is extraordinarily extensive and has the capacity to destroy the entire constitution
order. This observation proves to be correct when one looks at the successive
amendments six altogether closely.
The first amendment to art. 150 were made in 1960 on the duration of emergency and
parliamentary control over the emergency proclamation and laws. With this amendment
the executive was given the ability to prolong the emergency. Under the 1957 constitution
emergency laws would lapse within fifteen days unless approved by a resolution of both
houses of parliament.
The subsequent amendment, made in 1963, was initiated following the entry of Sabah,
Sarawak and Singapore into the federation. However one wonders if that was really the
reason as provisions in art. 150 were widened: under the new provision there is no need
to relate the threat to security and economic life to the country to war, external
aggression or internal disturbance prescribed by the original provision. This amendment
also enlarged the law-making power of parliament during an emergency; effectively
removing the division of power between federal and state legislatures in the original
version. The 1963 amendment also, effectively made emergency laws prevail over the
constitution. The only limit prescribed was that such laws shall not touch matters
concerning Muslim law, custom of the Malays and Borneo native, religion, citizenship or
language.
The amendment in 1966 was aimed at allowing the federal government to dictate the
course of political crisis in Sarawak in its favor. It is be noted that federal government
was unable to do that as the political man oeuvre inspired by the federal politicians was
declared illegal by the court. Under this temporary amendment to arts. 150(5) and (6) the
obstacles maintained by the Sarawak Constitution were removed. This includes giving
power to the head of state to convene the sitting of the state legislature. As it happened all
these eventually paved the way for the removal of the state chief minister who was at
loggerheads with the federal premier from office.

3
The amendments made in 1981 were by far the most important. It was quite obvious that
this move by the government was occasioned by the rulings handed down a legislation
promulgated by the government under emergency power. Several notable addition and
deletion were also made and these include (1) the addition of public order as one of the
ground under which an emergency may be declared, (2) the abolition of parliamentary
control on emergency for under the provision in art. 150(2) the Yang di Pertuan Agong is
longer under duty to summon parliament, (3) that proclamation of emergency may be
issued even before the actual threat, (4) the permissibility of the issuing overlapping
emergency proclamations without affecting the legality of the existing ones, (5) giving
the executive power to legislate similar to that of parliament and (6) the removal of
limitation on the executives legislative power and now the only bar to such power is
when the two houses are assembled together.
The amendments made in 1983 and 1984 revolved around the Yang di Pertuan Agongs
power to declare emergency. In 1983 the federal government which sought to transfer
such power to the Prime Minister. This precipitated a crisis as the Yang di Pertuan Agong
refused to sign the amendment bill. Eventually the crisis was resolved by returning the
power, in a subsequent made in 1984, to the Yang di Pertuan Agong. Views are divided
on the matter. Some argued that the Yang di Pertuan Agong has no significant role as he
has to act on the advice of the cabinet. However, as it shall be discussed later, it is more
than just government advices for there are other considerations, particularly the notion of
reserve powers belonging to the Yang di Pertuan Agong as well as the extraordinary
nature of emergency powers.
For the record emergency has been declared many times starting with the one initiated by
the British in 1948. This proclamation was, however, lifted in 1960. The subsequent
declaration was made in 1964 to deal with the intrusion of the forces following
Indonesias Soekarno hostility towards Malaysia. It was followed by the 1966 emergency
which was however imposed only on the state of Sarawak. In 1969 a declaration affecting
the entire federation was made in aftermath of racial riots following the general elections
that year. This was followed by another declaration of emergency in 1977 which sought

4
to deal with the political crisis in Kelantan. It has been argued that as none of these
emergency declarations was in fact lifted or annulled, from the legal point of view,
Malaysia is still under the state of emergency. This means that the government could
continue making laws under art. 150 without going to parliament.
1.3 The History of Emergency in Malaysia
Since 1963 the Malaysian Constitution came into being on 31 August 1957.
Independence was attained in the midst of a campaign of destruction and terror by
communist terrorists. The new Constitution was thus conceived against a backdrop of a
state of emergency which had been proclaimed in 1948. Since 1957, the Malaysian
Constitution has found itself continually weathering a storm of exigencies. Powers to
cope with emergency are embodied in Article 150 of the Constitution. 3 Since 1948,
Malaysia has 5 emergencies in constitution. The first emergency was started by British at
13 July 1948 to destruction and terror by communist terrorists. The second emergency by
Yang di Pertuan Agong at 3 September 1964, because the government of Indonesia,
President Soekarno and Minister of Foreign Affair, Dr. Subandrio defiance generate of
Malaysia. The important emergency in Malaysia declares by Yang di Pertuan Agong on
May 15 1969. This case about riot by Malay and non-Malay.

F.A.TRINDADE and H.P. LEE: The Constitution of Malaysia Further Perspectives And
Developments (135)

5
CHAPTER 2: THE EMERGENCY POWER
2.1 Proclamation of Emergency
2.1.1: The Power to Declare
Art.150 (1) says, inter alia, that, IF the Yang di Pertuan Agong is satisfied that a grave
emergency exists..he may issue a Proclamation of Emergency. Given the notion of
emergency and constitutionalism that stand as the foundations of the constitution this
is not to be understood literally. The general understanding is that The Yang di Pertuan
Agong as a constitutional monarch must act on the advice of the government.
However to insist on such a line of interpretation may lead to problems as it open to
provision for abuse by the government. These are some of issues that have surrounded
the provision in art.150(1).As has been mentioned above back in 1983 the Federal
Government had tabled an amendment in a attempt to transfer the power to declare
emergency to the Prime Minister but somehow failed as the rules opposed the move.
There are many issues to consider; such as the nature of the provision itself, the
position and role of theYang di Pertuan Agong as well as the implications of
emergency powers it is obvious that proclamation of emergency is a very serious
matter as it obstructs the normal fabric of the constitution. And one must not forget
that apart from emergency there is also power to contain subversion and other security
threats. In other words emergency is not the only means to handles threats to and
perhaps, the survival of the federation. The major opininos of the controversy about
the power to declare emergency are (i) that the Yang di Pertuan Agong must act on
advice,(ii) that the Yang di Pertuan Agong might action his discretion (iii) hat Yang di
Pertuan Agong needs to play the role and checks and balances. The proponents for the
view that Yang di Pertuan Agong must act on advice rely mainly on art.(1) and the
case law. The view which asserts that the Yang di Pertuan Agong must act on advice
underlines the literal way f understanding the constitution effectively treating the Yang
di Pertuan Agong just as a rubber stamp for the government of the day. It is submitted
that to apply the requirement to act n advice mechanically would have the effect of

6
defeating the purpose of having the emergency provision itself in the first place. As
Zulkefli Makinuddin has ruled in Mohd Amin, to insists that [requirement to act on
advice art.(1) to be strictly adhered to.. would render [150(1)] nugatory(The later
provision) has to be given a purposive interpretation.As it has been said in the
opening of this chapter emergency powers are mean to deal wit critical situation with
maximum speed and effectiveness.4
2.1.2: Circumstances in Which Emergency in be invoked
Art. 150(1) confers on the government broad powers to introduce emergency rule; If
the Yang di Pertuan Agong is satisfied that a grave emergency exits whereby the
security, or he economy 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 effects. Under ART150(2), as amended in 1981, such proclamation may be issued
before the actual occurrence of the threatened even, by way of preventive action, if the
Yang di Pertuan Agong is satisfied that there is imminent danger of its occurrence. Art.
150(2a), introduced in 1981 allows the issuing of proclamations on different ground or
in different circumstances, regardless of the existence of other proclamations. Thus
two or more emergency proclamation may validly overlap, chronologically or even
geographically, and the later does not impliedly revoke the early. In Stephen Kalong
Ningkan v. Government of Malaysia the Privy Council, considering the meaning of
emergency in art. 50(1), stressed the breadth of the concept: I is not confined to
unlawful use or threat of force in any of its manifestations. The natural meaning of
the word itself is capable of covering a very wide range of situation and occurrences
including such diverse elements as war, famines, earthquakes, floods, epidemic and
the collapse of civil government,

Malaysian Constitution A Critical Introduction. Abdul Aziz Bari (2003) Mutiara

Majestic 46000 Petaling Jaya Malaysian. Pages 188-190

7
However, it must be gave and such as to threaten the security or economic life of the
federation or any part of it. Thus by constitutional amendment and by judicial
interpretation the power to proclaim an emergency has been made breathtakingly
wide, even though the Reid Commission was concerned to limit and define the
circumstances in which emergency powers could be invoked.5
2.1.3: Emergency Law
Under the repealed constitutional provision, parliament must be summoned as soon as
may be practicable if it was not sitting at the time of the proclamation of emergency
Until both houses of parliament are sitting, the Yang di Pertuan Agong may
promulgate ordinance which have the force a law. In the leading case of The Cheng
Poh v. p. p earlier in the text, the Privy Council was asked the rule, inter alia on the
validity of subsidiary legislation made by the Yang di Pertuan Agong under power
conferred upon him by the emergency (Essential Powers) Ordinance, 1996. The
Ordinance was promulgated by himself when parliament was not sitting. Lord
Diplock, delivering the opinion of Provy Council, rules that once Parliament had sat,
the Yang di Pertuan Agong no longer had any power to make law unless Parliament
delegated that power to him. Therefore, the subsidiary legislation mad by him mare
then four years after parliament first sat on 20 February 1971 following the 1969
proclamation of emergency was ultra vires he constitution and for that reason void.
The subsidiary legislation declared void by the Privy Council was subsequently
validated by an act of parliament which was given retrospective effect. The emergency
(essential Powers) Act , 1979 repealed the 1969 Ordinance promulgated by the Yang di
Pertuan Agong and, at the same time, validated retrospectively all acts including any
regulations mad under the repealed Ordinance after parliament first on February 1971,
that is to say, those subsidiary legislation declared by the courts in The Cheng Pohs
case to be void. In other words, the act po1979 was deemed to have come into force on
February 20, 1971.The Act, among other thing, confers authority on the Yang di
5

Law , Government and the Constitution in Malaysia. Author Andrew Harding.

publisher MALAYAN LAW JOURNAL SDN BHD Wisma Hamzah Kwong hing no, 1 Leboh
Ampang 50100 Kuala Lumpur(1996) pages 154-155

8
Pertuan Agong to make any regulations whatsoever which he considers, desirable or
expedient for securing public safety, the defenses of the country, the maintenance of
public order and of supplies and services essential to the life of the community. Any
regulations so made will have effect even if they are inconsistent with the constitution6
2.1.4: Amendment
Any legislation which proposed to stop or prevent subversive actions or action
prejudicial to public order etc. is fully protected by article 149 and their validity
cannot be questioned as violating even the fundamental liberties guaranteed by article
5, 9, 10, 13 or that matter any other provision of the constitution. But this is quiet
different from an action being questioned as invalid on the ground of non-compliance
with the provision of any such legislation. Thought a person may be lawfully detained
pursuant to a law sanctioned by article 149, it cannot be claimed that the detainee will
be wholly deprived of even certain basic rights like the right to consult a counsel of
his own choice. In such cases, no doubt, habeas corpus may not be the available
remedy, but the detainee can take the resource to other provisions. Legislation like the
Internal Security act 1960, to conform to the provisions of art 149 need to necessarily
be only of a preventive nature. That its the expression designed to stop or prevent
that action in Article 149 (i) would authorise even legislations which are intended to
prosecute and punish completed acts of crime as well. Article 149 gives very wide
powers of legislation and it would not be incompetent for the parliament to enact a law
like the Internal Security Act 1960 conferring power of the Minister even the to extent
the period of detention the first period has expired. While prior to the amendment of
Art 149 by the Constitution (Amendment) Act no. 10 of 1960, any legislation made
pursuant thereto would have automatically expired after one year, after the amendment
it can continue indefinitely unless and until repealed by Parliament. 7
2.2 The Structure of the Emergency Power Provision
6
7

The Malaysian Legal System. Author Wu Min Aun. Publisher LONGMAN MALAYSIA 1990, Selangor.

Federal Constitution Of Malaysia. Author k.v Padmanabha Rau. Punisher Malaysia

Current Journal Sdn. Bhd. Lot No. 12 Ground Floor, Straits Trading Building, 50700
Kuala Lumpur. Year 1986.

2.2.2: Consequences of a Proclamation

Parliament has the power to enact emergency laws following a proclamation. Under
Art. 150(5),Parliament may, notwithstanding anything in this Constitution, make laws
with respect to any matter, if it appears to parliament that the law is required by reason
of emergency; and any restrictions imposed by the Constitution or written law
requiring any consent, concurrence or consultation, or restricting the coming into force
a law are inapplicable.
Furthermore, provided that following a proclamation, an Act of parliament declares
that the law appears to Parliament to be required by reason of the emergency, no
provision of such Act can be invalidated on the ground of inconsistency with any
provision of the Constitution. The same applies to executive ordinances. However, the
supremacy of emergency laws does not extend to constitutional provisions with respect
to Islamic law, Malay custom and native custom in Sabah or Sarawak, religion,
citizenship or language. Originally it was only the fundamental-rights provisions of
Part II of the constitution which were subject to this overriding principle; but since
1963 the entire Constitution, except those provisions listed above, may be overridden.
In addition, during the continuance of an emergency, the separation of the federal and
state executives is in effect suspended, because the executive authority of the
Federation extends to any matter within the legislative authority of the states, and to
the giving of directions to State Governments and state officials or authorities. A
proclamation and an ordinance under Act. 150 must be laid before both Houses of
Parliament and it not sooner revoked, cease to have effect if annulling resolutions are
passed by both Houses. This is without prejudice to anything previously done by virtue
of the proclamation or ordinance, or to the executive power to issue a new
proclamation, or promulgate ant further ordinances. Even when a proclamation ceases
to have effect for a further period of six months any ordinance passed under it and to

10
the extent that it could not have been validly made while the proclamation was in force
any law made while the proclamation was in force continue in force.8
2.2.3: Judicial Scrutiny of Emergency Power
Prior to 1979 it was not quite clear whether it was. The Privy Council in Ningkans
case in 1968 had found it unnecessary to decide whether such power existed although
the Federal Court in the same case had said a proclamation was not justifiable. Later
judicial pronouncements in Malaysian court appeared, nonetheless to indicate that it
might be held to be justifiable. However in 1979 in The Cheng Poh v. Public
Prosecutor, the Privacy Council, in its last and most notable judgement on the
Malaysian Constitution, held that once Parliament had sat the executive power to make
regulations under emergency ordinances as well as the power to enact ordinances
lapsed, so that all regulations made under the Emergency Proclamation since February
1971, when parliament was summoned, where invalidated. In consequence Parliament
passed the Emergency(Essential Powers) Act 1979,operative from 20February 1971,to
validate the regulations and all action taken under them, and confer on the Director of
Operations all of powers granted by Ordinance No.1.However,the tone of the Privy
Councils judgement in the case, and same of its dicta, indicate that it would probably
have held an emergency proclamation justifiable in particular, it was held that the
continuance of a security area proclamation under the Internal security Act is
justifiable.9
2.3 Termination of Emergency
Article 150(3) requires the laying before Parliament of a proclamation or emergency and
any ordinance promulgated under it and unless sooner revoked, they will cease to have
effect only if annulling resolutions are passed by both Houses of Parliament. At the time
of writing, the author is unable to find either a formal revocation by the King of the
8

Law, Government and the Constitution in Malaysia.Author by Andrew

Harding.Malayan Law Journal Kuala Lumpur 1996.Page 155
9
Law, Government and the Constitution in Malaysia Author, Andrew Harding.
Malayan Law Journal Sdn Bhd.1996.Page 157

11
emergency proclaimed in 1969 or an annulling resolution by Parliament and must assume
that it is still in force twenty years after the proclamation. From a reading of current
practice and judicial pronouncements, a regular pattern has emerged whereby a new
proclamation of emergency often overlaps another. By so acting, has the earlier
emergency been implicitly revoked? A further question that has arisen is whether an
emergency can terminate by expiry of time seeing that the current emergency is more
than twenty years old. This proposition was in fact rejected by the Federal Court in
Johnson Tan Han Seng v. Public Prosecutor [1977] 2 M.L.J.66. In the above case, Suffian
L.P. concluded, It is a matter for the executive to decide whether a proclamation of
emergency should or should not be terminated, and not for the court. (p.69) Article 150
in its present form does not contain asunset clause or a deadline beyond which an
emergency ceases.10
2.4 The Future of Emergency Laws and Subversion Laws
Issues pertaining to the future for emergency and subversion laws are obviously political
questions. However, just because such questions are political and not legal in nature does
not mean that they be left to the politicians or more dangerously, to the government
alone, to decide. In a democracy political questions essentially mean that they are to be
decided by the people by the people although this could also mean that such are to be
decided by the elected politicians. The point is simply that the people must be made
involved in the process. But this is not always easy to do in Malaysia, given the
prevalence of various legal restrictions on freedom of expression, assembly and
association.
Whether the provision should stay with some modifications needs to be in the light of the
past and present. This means that the background of the provisions as well as the practice
which include the abuse etc- must be examined. In some of the countries mentioned early
in this chapter emergency powers are not clearly defined. But this seems good for it
allows flexibility, in Malaysia, on the other hand, the provisions are clear but they have
10

The Malaysian Legal System.Author by Wu Min Aun. Logman MalaysiaSdn. Bhd

1990.Page 183

12
been amended to make it easier for the authorities to invoke those extraordinary powers
as well as to prolong their continuance. As the court has refused to impose any control it
is for the people to decide and make sure that such powers remain as a device to deal with
crisis.
Calls to abolish statutes such as the Internal Security Art 1960 in recent years make sense
for the exiting provisions have been tightened and the parties which would benefit from
the amendments are obviously those vested with the powers. In the meantime allegations
of abuse have not been rebutted convincingly by the government. They are apparently the
only parties that have defended such powers. Actually abolishing statuses like the 1960
act does not necessarily put the security of the state at risk for it-either the Yang di
Pertuan Agong or the government- still retains the prerogatives on the issue. The only
difference is that such a prerogative can only be invoked in a real security crisis and that
it invariably covers specific situations like wars, espionage etc.

CHAPTER 3: THE USE OF EMERGENCY POWER

13

3.1 The Cases that Related on Emergency Power

3.1.1: Communist (1949)
The first emergency Proclamation was decided by British on 13 July 1948 to prevent
uncontrolled situation by Communist. 11 At that time, Malaysia is still not having their
independent more. This state was command by (Perjanjian Persekutuan Tanah
Melayu 1949)12.

In this declaration, it is unavailable talk about emergency

Proclamation. But, it does not mean the State Legislative Assembly cant make a draft
of a proposed law that give a power to government about emergency Proclamation
and other step to prevent this uncontrolled situation. This statement is from a passage
..peace order and good government. For all country at Peninsular Malaysia as
a meaning of the declaration13. This law is not out from ultra vires Declaration
Federal. On this year, the State Legislative Assembly had examined a law named
(Emergency Law Ordinance 1948)14. So, by allotment section 3, from the ordinance,
the emergency Proclamation on 13 July 1948 was made by (Pesuruhjaya Tinggi
Persekutuan Tanah Melayu). By this ordinance also, a several law named (Ordinance
Laws) has legislate to emergency situation. The emergency was end on 3 July 1961.
Now, (Emergency Law Ordinance 1948) has annulled. But, some part from this rule
that suitable and important to prevent the subversive and the communist was
absorbent to a new act named (Internal Security Act 1960).

3.1.2: Konfrontasi 1964

11

. G.N 1921, 1948

G.N 6, 1948, lih. also Percetakan Kerajaan, Reprint January 1956
13
Sir Kennent Roberts-Wrag 1966. Commonwealth and Colonial Laws. Stevent, page
369-70; Chenard arssol (1949) A.C 127, page 132
14
Ordinance no. 10 year 1948
12

14

The 1948 emergency was the first post-war emergency to be proclaimed. The first
post-independence emergency was that proclaimed on grounds national security on 3
September 1964 to meet armed aggression by Indonesia as a result of its objection to
the formation of Malaysia one year earlier.
The aggression took the form of sea and air-borne landings and sabotage activities on
Malaysia territory. Although the landing parties each involved only about 50 persons,
there was a realistic fear of greater hostilities developing, although, in the event, as a
result of internal disturbance leading to the Jakarta Coup of 1965, the tension
between Indonesia and Malaysia evaporated. The emergency proclamation was
clearly justified. However, the failure of the Government to revoke the emergency
when it became clear that there was no further threat to national security created an
awkward and dangerous precedent; even now thirty years later, the emergency
proclamation has never been revoke, although there is every reason to suppose that it
has either lapsed by effluxion of time or been superseded by the May 1969
emergency proclamation.
The main measure taken under this Proclamation was the enactment of the
Emergency (Criminal Trials) Regulations 1964, which dispensed with the
requirement of a preliminary inquiry in criminal cases.
3.1.3: Sarawak 1966
The emergency proclaimed on 14 September 1966 in relation to Sarawak represented
an entirely different kind oof situation, originating in tensions between the Federal and
State Governments following Sarawak joining Malaysia in 1963. Although the ruling
party in Sarawak, SNAP, was a member of the Alliance, which rule at the federal
level, the Chief Minister of Sarawak, Dato Stephen Kalong Ningkan, pursued an
independent policy which irritated federal leaders. They were particularly annoyed
with his insistence on using expatriate officers and his support of Singapore, recently

15
expelled from the Federation. The constitutional chicanery which followed has been
described previously in relation to the litigation concerning Ningkans dismissal from
the post of Chief Minister. This constituted a determined attempt by the federal
authorities to secure the dismissal of Ningkan and the appointment of a Chief Minister
of their own choosing.
Out of 42 members of the Council Negri, the state legislature, 21 had signed a letter to
the Governor expressing lack of confidence in Ningkan as Chief Minister, on the basis
of which the Governor had dismissed Ningkan after his refusal to tender his
resignation. The High Court on 7 September 1966 had ruled that Ningkans dismissal
was unlawful, the Governor having no power to dismiss the Chief Minister in such
circumstances without a no-confident vote in legislature. Accordingly Ningkan was
still the Chief Minister and the appointment of his successor was invalid. There was no
opportunity for a test of the legislatures confidence in Ningkan, as the summoning of
the legislature now depended on Ningkan himself. As a result of the High Court
decision it was also unclear whether the Governor had a power to dismiss the Chief
Minister in any circumstances, let alone those which prevailed. Thus the continuation
of the impasse favoured Ningkan.
The emergency proclamation which followed was promulgated on the ground of a
threat to the security of Sarawak; in truth, however, there was no real security threat,
and only expected demonstration had been occurred. The real reason for the
proclamation was the existence of a constitutional crisis which allowed no immediate
resolution in favour of the Federal Governments interests, as the passing of the
emergency (Federal Constitution and Constitution of Sarawak) Act 1966 shows. The
Act, passed by parliament six days after the Proclamation (it was not sitting and had to
be specially summoned for this purpose), gave power to the Governor of Sarawak, by
way of temporary amendments to the Federal Constitution and the Constitution of
Sarawak, to summon a meeting of the Council Negri without the advice of the Chief
Minister.

16
This was promptly done, and on 23 September 1966 Ningkan lost the vote on the
ensuing no-confidence motion, and was then, finally, dismissed from office. As was
discussed earlier, the validity of the emergency Proclamation and all that followed was
challenged by Ningkan right up to the Privy Council, but without success, and the
matter was ultimately resolved by the 1969/70 elections, adversely, once more, to
Ningkan. This emergency, like the 1964 emergency, was never revoked. Again, it can
be considered to have lapsed by effluxion of time or by implication as a result of the
1969 emergency. Unlike the 1964 emergency, however, it was proclaimed wholly for
reasons of political convenience, and not for any reasons which would stand close
scrutiny in the light of Art. 150.
Although it can be presented as an impartial attempt by the federal authorities to fill a
lacuna in the Constitution of Sarawak by the only means available, it is hard to resist
the proposition that the normal operation of the constitutional system would eventually
have resolved the disputed, as Ningkan would eventually have been obliged to
summon the legislature and take his chance on a confidence motion, or advise a
dissolution and leave the matter to the electorate; in the meantime he was properly
ruled by the High Court to be the Chief Minister, and should have been allowed to
continue in office until the legislature or the electorate had signified its wishes.
What is alarming about the 1966 emergency from the point of the view of the States is
that it suggests that there are no legal or political limitations, during the currency of
emergency proclamation, on the power of the Federation to interfere with the division
of legislative and executive powers between the Federation and the States, or even to
violate a State Constitution. While the temporary superseding of the federal structure
during an emergency was specifically envisaged by the Reid Commission (and indeed
the existence of such obstacles is the main reason for providing, constitutionally, for
the exercise of emergency powers), if there is no effective scrutiny, then States rights
are placed at the federal level, and even a temporary encroachment can have a
devastating effect.

17
3.1.4: May 13, 1969
On May 13, 1969, before the elections for the House Representatives and the State
Legislative Assemblies could be completed, racial rioting took place in Kuala Lumpur.
An emergency was proclaimed, and Malaysia was under emergency rule till the mid
seventies. The uncompleted elections to the House of Representatives and to the State
Legislatives assemblies were held in 1970, and eventually on 20th February, 1971,
Parliament was reconvened. Although Parliamentary government has been restored in
Malaysia the state of emergency proclaimed in 1969 is still in existence, as the
proclamation of emergency has not been revoked.
3.1.5: Kelantan 1977
The 1977 emergency in Kelantan had more common with the 1966 emergency in
Sarawak than with the 1964 or 1969 emergencies, in that concerned tension between
the Federal and State Governments, but had none of the elements normally expected in
a emergency situation.
The Islamic Party (PAS) was in control of the State Government since, but was also a
member of BN (UMNO), as the main opposition party in Kelantan, then attempted to
unseat PAS as the State Government by winning the Chief Minister, Dato Mohammad
Nasir, over to their side. This create a split within PAS, as result of which Nasir
expelled from PAS, and then, on 15 October 1977, lost vote on a confidence motion in
the State Legislative Assembly. Nasir then requested the Regent of Kelantan dissolve
the Assembly, but the Regent gave no decision on the request.15 In view of the wording
of the Constitution of Kelantan and constitutional convention, it was then incumbent on
Nasir to submit the resignation of the State Executive Council, and for the Regent then
15

Whether the Regent acted properly is an interesting question. While it may be that
reluctance to give a decision is the Malay method of conveying a negative decision,
constitutional law is not very clear what are the consequences of royal silence.
Presumably after the lapse of a reasonable period to decide, the Regent was acting
unconstitutionally in not making a decision. See, further Y.A.M. Raja Azlan Shah, The
role of Constitutional Rulers in Malaysia , Ch.5 of Trindade & Lee, above n 26, 83-4.

18
either to dissolve the Assembly or to call on another member of the Assembly to form a
government; however, none of these things occurred, and there was, as in Sarawak, a
constitutional impasse.
PAS did not respond to a Federal Government ultimatum, and on 8 November 1977 an
emergency was proclaimed on the ground that the security or economic life of Kelantan
was threatened.16 As in Sarawak, there was no evidence of any real threat to security,
and the reference in the Proclamation to the economic life of Kelantan is simply
incomprehensible; there had been some demonstrations but rioting or disorder or other
alarm. Parliament , which happened to be sitting, then passed the Emergency Powers
(Kelantan) Act 1977, which suspended the State Constitution and the powers of the
Menteri Besar and the executive powers in a Director of Government (DG), advised by
a State Advisory Council, both appointed by the Prime Minister pursuant to the Act.
The Prime Minister was given powers to give direction to the DG, to dismiss him, and
to make regulations to implement the Act.
The DG governed Kelantan until 11 February 1978, when the emergency was
revoked,17 and the political dispute was resolved by elections, held the following
month, in which UMNO and anew party, formed by Nasir, prevailed.
The 1977 emergency confirms what is said above concerning the interference with
States rights during an emergency. In effect the 1966 and 1977 episodes amount saying
that an emergency can be proclaimed can be proclaimed whenever the Federal
Government considers that the State Government cannot be carried on according to the
State Constitution. While this would seem to be a reasonable ground in principle for
proclaiming an emergency, the Constitution does not provide for such a ground, and the
dangers of allowing such an emergency to be proclaimed are patent from both the 1966
and the 1977 episodes. In both cases it was perfectly possible for the constitutional
problems to be resolved through the operation of the States constitution, and there was
no real security problem to justify federal intervention; and in both cases the federal
16
17

PU(A)358/1977.
PU(A)46/1978.

19
authorities acted to their own political advantage, securing control of the State
Government.
In fact justified the It is fortunate that in a similar constitutional crisis was in Sabah in
1985/6, when there were in proclamation of an emergency, no such proclamation was
made and the crisis was resolved public order and security problems which might, in
comparison at least with 1966 and 1977, have constitutionally. 18 The Sabah episode
offers further proof that the two earlier emergencies w and were both unnecessary and
damaging.

CHAPTER 4: THE ENDING

18

Harding, A.J., Turbulence in the Land Below the Wind: Sabahs Constitutional Crisis
of 1985/6 [1991] XXIX Journal of Commonwealth and Comparative Politics 86.

20

4.1 Conclusion
The emergency will be happen when the country bedlam causing anxiety and it will be
effect to the economic growth. So, the Federal Constitution give the government or any
person who authority to take any strides for country protect and peace.
According the Art 150 Federal Constitution, Yang di-Pertuan Agong have the power to
declare of emergency if he is satisfied that a grave emergency exists whereby the security
or the economy life or public order in Federal or any part thereof is threatened. Since
1948, five emergencies were declared and until now, Malaysia undergoes the emergency
because the cases were not terminated.
During the emergency happen, not only the Parliament have the power to make
emergency act but Yang di-Pertuan Agong can make ordinance that have the same power.
According the Art 150(2), if at any time while a Proclamation of Emergency is in
operation, except when both Houses of Parliament are sitting concurrently, the Yang diPertuan Agong is satisfied that certain circumstances exist which render it necessary for
him to take immediate action, he may promulgate such ordinances as circumstances
appear to him to require. It means, for determine either Ordinance is certified or not must
have three conditions.
According the Art 150(3) Federal Constitution, the emergency will be ending when the
proclamation of the emergency are taken back by Yang di-Pertuan Agong or cancelled by
the Parliament through a conclusion that certified by the Dewan Rakyat and Dewan
Negara. It means that Yang di-Pertuan Agong have the power to cancel the emergency.
To summaries, Yang di-Pertuan Agong have the full power to declare, terminate and
legislate during the emergency happen.