THE Emergency (Essential Powers) Ordinance, already in effect from January 11, gives unfettered powers to Prime Minister Tan Sri Muhyiddin Yassin in the name of the king, going far beyond what is required to control the Covid-19 pandemic.

It provides numerous avenues for a substantial abuse of power, without any checks and balances whatsoever, including the power to appoint a committee that could potentially extend the life of the emergency, and the power to temporarily seize land, building and movable property, and unilaterally decide the compensation for this.

It is therefore a perilous situation for Malaysia to be moving into, where one man can rule the country without having to refer to anyone else, and with no checks and balances.  

If there was no emergency, the threat from Covid-19 could still be handled with all the existing legislation already in place, raising the question as to why the emergency ordinance should give so much power to the prime minister.

Some of the concerning sections in the ordinance include the establishment of a special committee. Section 2(1) of the ordinance states: “There shall be established an independent special committee to advise the Yang di-Pertuan Agong on the continuing existence of the grave emergency threatening the security, economic life and public order of the Federation arising from the epidemic…”

This implies that if the committee, which is to be appointed by the king under Section 2(2) (in effect, on the advice of the prime minister), decides that the conditions of the emergency still exist, then the emergency can potentially be extended. Since the prime minister will effectively appoint the committee, one can expect that the committee may favour the prime minister in its decisions.

Section 3 gives power to the government to seize, as long as the emergency is in force, any land, building or movable property, and use it in any way it wants.

Section 4 allows the government to demand the use of any resources for any purpose specified. Resources are defined to include “human resources, facilities, utilities and assets, and the controller or manager of such human resources, facilities, utilities and assets”. This seems to mean that anyone can be enlisted in the effort to do anything! The fees for using such resources will also be determined by the government.  

Section 5 specifies that the compensation for taking over property, etc, will be determined by a person authorised by the king, in effect, the government through the prime minister. That assessment will be final and cannot be challenged in any court of law. So much for Muhyiddin’s assurance that he will not interfere in the court process.

The penalty for an offence under Section 3 or 4 is a fine not exceeding RM5 million, or imprisonment for a term not exceeding 10 years, or both.

This is a drastic, sinister piece of legislation that may be justified in times of war, or severe civil disturbance, or other extreme situations, not when the country faces no external or internal threat that jeopardises its very survival. It far exceeds what is required to fight the Covid-19 pandemic.

Strangely, while Muhyiddin maintains that the emergency is to fight Covid-19, the ordinance addresses Covid-19 only under one short section. In that, too, it refers to existing legislation already in force.

It appears under the heading “Directions for treatment, immunisation, isolation, observation or surveillance”. It reads as follows in fewer than 100 words:

6. (1) For so long as the emergency is in force, the Yang di-Pertuan Agong or any person Authorised by the Yang di-Pertuan Agong, may appoint, subject to conditions as may be determined, any person to issue directions for treatment, immunisation, isolation, observation or surveillance under paragraphs 11(3)(a) and (b) of the Prevention and Control of Infectious Diseases Act 1988 (Act 342);

(2) The direction issued by the person under subsection (1) shall be deemed to be a direction issued by an authorised officer under the Prevention and Control of Infectious Diseases Act 1988.

Even this seems to be directed at taking away the power of authorised persons under the Prevention and Control of Infectious Diseases Act rather than to give these authorised officers additional powers to control diseases. Thus, the emergency ordinance puts the control of diseases into the hands of those other than the authorised officers.

The long and short of this emergency ordinance is that, it does not do anything in terms of fighting Covid-19, but gives needlessly unfettered powers to the prime minister, putting the country in an unprecedented situation at a time when peace and calm prevail.

The only disturbance in the country is the poor government, and the underlying political instability that results from that. The emergency takes the dangerous, hazardous and perilous step of giving this incompetent backdoor government, which does not even have the majority in Parliament, unlimited powers to rule!

Pakatan Harapan head Datuk Seri Anwar Ibrahim has correctly called on MPs to write to the king to rescind the emergency.  

It behoves every elected representative – every MP and every assemblyman, who has been stripped of his/her right to represent the rakyat in their respective houses – to write to the king and ask him to rescind the proclamation of emergency, and restore democratic rights in the country.

In a time like this, the king can exercise his right to overrule any request for an emergency, which is clearly not tenable, given the circumstances under which it was requested.

In the meantime, parties opposed to the emergency should consider their legal options. For instance, former attorney-general Tan Sri Tommy Thomas wrote in an article last October that an emergency was unconstitutional in the circumstances then.

The king, responding to a request from Muhyiddin for an emergency, that month turned it down after consulting the Malay rulers. There seems to have been no consultations this time around.

Clearly, the emergency ordinance is far more draconian than if it were intended purely for the purpose of fighting Covid-19, as stated by Muhyiddin. – The Vibes, January 15, 2021

P. Gunasegaram says in this day and age, there is absolutely no need to kill a fly with a sledgehammer – a spray does the job nicely, as will vaccination soon enough with Covid-19. He is editorial consultant at The Vibes and executive director of the Sekhar Institute