The federal constitution has always been regarded as the supreme law of the Federation of Malaysia, as stated under Article 4(1) of the Federal Constitution.
THE federal constitution has always been regarded as the supreme law of the Federation of Malaysia, as stated under Article 4(1) of the Federal Constitution.
In this respect, Prof Emeritus Datuk Dr Shad Saleem Faruqi points out that despite all states having their own constitutions, they are subordinate to the Federal Constitution.
“This is especially so in a State of Emergency,” said the constitutional expert from Universiti Malaya, stating further that under the Emergency Order declared by Yang di-Pertuan Agong under Article 150(1), most provisions of the federal and state constitutions could be suspended – if an Emergency Law so declared.
Prof Emeritus Datuk Dr Shad Saleem Faruqi
However, the academician said such suspension was not automatic, as it must be ‘explicitly provided for’ in the Emergency Law.
“Under the Sarawak Constitution, the five-year term of the DUN is coming to an end and the state election must, therefore, be called within 60 days following the dissolution of the Assembly.
“However, due to the Emergency, these provisions of the Sarawak State Constitution are suspended.”
Shad Saleem said Section 15(2) of the Emergency (Essential Powers) Ordinance 2021 stated that any state assembly that was in session would be suspended.
“Under Section 15(1) of the said Ordinance, for so long as the Emergency is in force, the provisions relating to the summoning, proroguing and dissolution of the DUN shall not have any effect. These provisions are found in the Federal Constitution and in all state constitutions and laws.”
Shad Saleem said this meant that the suspended DUN could not be summoned back to session and could not be dissolved during the Emergency – except in accordance with the Emergency (Essential Powers) Ordinance 2021.
He also said Section 15(1)(b) of the Ordinance stated that the power to summon, prorogue or dissolve the DUN would be transferred from the Yang Di-Pertua Negeri to the Yang Di-Pertuan Agong.
“It is up to the federal government to advise the Yang di-Pertuan Agong as to when DUN should be dissolved. The five-year DUN term under Sarawak Constitution is not applicable during the Emergency.”
Having said that, Shad Saleem said the effect of the dissolution of DUN Sarawak on the state government was unclear under the Emergency (Essential Powers) Ordinance 2021 if the Yang Di-Pertuan Agong had dissolved the Assembly and fixed the date for the state election under Section 13(b).
“One view is that during the election period, the Chief Minister would remain at the helm in a caretaker capacity. This is also in line with Section 11(b) of the Ordinance, which states that the Chief Minister stays in office ‘for as long as the Emergency is in force’.”
He said the other view was that once the election had been called by the Agong under Section 13 of the Emergency (Essential Powers) Ordinance 2021, Sections 11(b) and Section 15 of the Ordinance would cease to apply.
“(Under such scenario) the Sarawak Constitution would take over. The Governor (Yang Di-Pertua Negeri) would reassume the constitutional power to appoint a new Chief Minister and (Sarawak) Cabinet after the election results are announced, and to summon the new Assembly back to session.”
The third view, said Shad Saleem, stated that once election had been called by the Agong under Section 13 of Emergency (Essential Powers) Ordinance 2021, the Agong would have to promulgate a new Ordinance to suspend Sections 11(b) and 15 of the Emergency (Essential Powers) Ordinance 2021 of Jan 14, 2021, in order to authorise the Governor to appoint a new Chief Minister and State Cabinet and to summon the newly-elected Assembly.
“Thus, amendment would be needed to the Emergency Ordinance of Jan 14 to facilitate the appointment of a new government after the elections, and to summon the new State Assembly,” he added.
In his remarks, Minister of Entrepreneur Development and Cooperatives Datuk Seri Wan Junaidi Tuanku Jaafar said the Chief Minister of Sarawak and his State Cabinet would still be vested with the power to govern the state throughout the period of Emergency Order, says.
According to him, Section 13 of the Emergency (Essential Powers) Ordinance 2021 has stated that for as long as the Emergency is in force, the provisions relating to an election in the DUN under the Eight Schedule of the Federal Constitution, the Constitution of any State and any State Law shall have no effect.
“By virtue of this section, the provision of the Sarawak Constitution and any state law with respect to elections is also suspended. Therefore, there is no automatic dissolution as provided under the Sarawak Constitution and therefore, there is no need to have an election,” said the former deputy speaker of the Dewan Rakyat.
Datuk Seri Wan Junaidi Tuanku Jaafar
The term of DUN Sarawak has also been suspended, as provided under Section 1(b) of Emergency (Essential Powers) Ordinance 2021, stating that the Ordinance had come into operation in January this year.
“Consequently from that time on, the term of Council Negri Sarawak was also suspended, as if the time never moved. Therefore, the time during which the Emergency remains in force could not be counted as part of the five-year term of the State Assembly.”
Wan Junaidi said accordingly, the present Sarawak government is legitimately still in power and the executive and legislative powers of the Chief Minister and his State Cabinet members are given under Section 11 (b) the Emergency (Essential Powers) Ordinance.
He said under Section 11 (b), the Menteri Besar or Chief Minister and the State Executive Council or State Cabinet of respective state existing immediately prior to issuance of the Proclamation of Emergency on Jan 11, who have been conferred the executive functions, shall continue to exercise the executive authority of the state and such other persons who have been conferred the function by law shall continue to exercise such function.
“By virtue of Section 11(b), the power to govern the state is still vested on the Chief Minister and his Cabinet.”
Wan Junaidi said under Section 11(c), the legislative functions to make subsidiary legislation under federal and state laws shall continue to be exercised by the persons authorised by such laws.
“By virtue of Section 11(c) also, the government officers who are vested with power under the laws, federal or state, would continue to exercise the powers.”
Wan Junaidi pointed out that the Emergency (Essential Powers) Ordinance 2021 did not vest any power to govern on the Yang Di-Pertua Negeri, or anyone else.
From the foregoing provisions, he said it was obvious that the Chief Minister and his Cabinet would still have the full authority to govern the state throughout the period of Emergency, even beyond what was considered to be to be the end of DUN Sarawak term this June 6.
In this respect, he pointed out Section 13 (b) of the Emergency (Essential Powers) Ordinance 2021, stating that an election for the State Assembly shall be held on a date as the Yang Di-Pertuan Agong thinks appropriate after consultation with the respective ruler, or the Yang Di-Pertua Negeri.
“In other words, the term of the Council Negeri does not end automatically on June 6. It only ends on the date 60 days after Emergency is lifted. Thus, the election could be held within 60 days from the date the Emergency is lifted.”
Wan Junaidi said the only ramifications that he could see from DUN Sarawak being suspended due to the Emergency Order was political in nature, as to the way people would judge the government.
“Particularly with a myriad of opinions, rightly or wrongly, being burdened upon the government; otherwise, nothing else is going to change, even after June 6. It’s still the legitimate government under law.”
Wan Junaidi, who is Santubong MP, said there was no need to amend Sarawak Constitution to reflect the suspension of the DUN because the provision with respect to elections had been suspended by virtue of Section 13(a) of the Emergency Ordinance 2021.
from Borneo Post Online https://bit.ly/3pdALLK
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