On 30 July 2021, His Majesty the Yang di-Pertuan Agong (‘YDPA') had exercised his powers under Clause (1) of Article 150 of the Federal Constitution to issue the Proclamation of Emergency (Sarawak) [P.U.(A) 323/2021] (‘Proclamation') throughout the State of Sarawak from 2 August 2021 to 2 February 2022.
The Emergency (Essential Powers) (Sarawak) Ordinance 2021 [P.U.(A) 324/2021] (‘Ordinance') was promulgated by the YDPA under Clause (2B) of Article 150 of the Federal Constitution on 30 July 2021 and was gazetted on the same day. The Ordinance came into operation on 2 August 2021.
This Alert will explain the main features of the Ordinance.
Reason for the Proclamation
As stated in the Proclamation, the emergency was proclaimed to suspend the general election to the Dewan Undangan Negeri (‘State Assembly') that is required to be held within 60 days from 2 August 2021 in order to prevent any further increase in the spread of the COVID-19 pandemic if the general election is held.
Continuance of the Proclamation
In determining the continuing operation of the Proclamation, the YDPA is to consult the Yang di-Pertua Negeri (‘Governor') of the State of Sarawak. Notwithstanding the foregoing, the operation of the Proclamation may be terminated earlier by the YDPA after consultation with the Governor.
Dissolution and election of the State Assembly
While the emergency is in force, the provision of Clause (3) of Article 21 of the Constitution of the State of Sarawak (‘State Constitution') that the State Assembly stands dissolved after five years from its first sitting, shall have no effect.
The State Assembly shall be dissolved on the date when the Proclamation is revoked or annulled and the general election to the State Assembly shall be held within 60 days from the date of revocation or annulment of the Proclamation.
Sitting of the State Assembly
For so long as the emergency is in force, the provisions relating to the sitting of the State Assembly in the State Constitution shall have no effect.
Executive powers
For so long as the emergency is in force, the Chief Minister and the Majlis Mesyuarat Kerajaan Negeri Sarawak (Sarawak State Executive Council) existing immediately before the issuance of the Proclamation on 29 July 2021 shall continue to exercise the executive authority of the State of Sarawak and such other persons who have been conferred the executive functions by law shall continue to exercise such functions.
Powers to take temporary possession of properties
While the emergency remains in force, the YDPA or any person authorised by the YDPA (‘authorised person') may take temporary possession of all or any part of any land, building or movable property (‘relevant property') and may give such directions as may appear to him necessary or expedient in connection with the taking of the relevant property. The relevant property may be used by or under the authority of the YDPA or an authorised person for such purpose, and in such manner, as the YDPA or an authorised person thinks expedient.
Demand for resources
For so long as the emergency is in force, the YDPA or an authorised person may demand any resources (including human resources, facilities, utilities, assets and the controller or manager of such resources) to be utilised for any purpose the YDPA or an authorised person deems necessary. The YDPA or an authorised person may give any direction in relation to the utilisation, management and control of the resources to whom the resources are demanded.
Compensation
Compensation for any relevant property taken, or resources demanded or utilised, under the Ordinance is to be assessed by an authorised person, whose assessment shall be final and not be challenged or called to question in any court on any ground.
Directions under Prevention and Control of Infectious Diseases Act 1988
The YDPA or an authorised person may, for so long as the emergency remains in force, appoint any person to issue directions for treatment, immunisation, isolation, observation or surveillance under sections 11(3)(a) and 11(3)(b) of the Prevention and Control of Infectious Diseases Act 1988.
Temporary financial provisions
For so long as the emergency is in force, and notwithstanding any provision in the State Constitution relating to expenditure charged on the State Consolidated Fund, any expenditure requiring an ordinance or a resolution of the State Assembly, and withdrawal from the State Consolidated Fund, any expenditure or withdrawal from the State Consolidated Fund may be made with the approval of the Chief Minister or the State Financial Authority, as the case may be, in such manner as may be provided by any written law or any Treasury Instructions or Treasury Circulars relating thereto for the time being in force.
Healthcare professionals
For so long as the emergency is in force, the YDPA or an authorised person may exempt a healthcare professional under the Medical Act 1971, Dental Act 1971, Registration of Pharmacists Act 1951, Allied Health Professions Act 2016, Medical Assistants (Registration) Act 1977, Nurses Act 1950, Midwives Act 1966 or Optical Act 1991 from the requirement to comply with the place of practice specified in his annual practising certificate or its equivalent.
Offences
Any person who contravenes section 7 (taking temporary possession of any relevant property) or section 8 (demand for use of resources) of the Ordinance or fails to comply with a demand or direction by the YDPA or an authorised person commits an offence and shall, on conviction, be liable to a fine not exceeding RM5 million or to imprisonment for a term not exceeding 10 years or to both.
Where a person who commits an offence under any of the above-referred provisions is a body of persons, whether incorporated or not (‘entity'), a person who at the time when the offence was committed was a director, compliance officer, partner, manager, secretary or other similar officer of the entity or was purporting to act in the capacity or was in any manner or to any extent responsible for the management of any affairs of the entity or was assisting in the management of the entity may be charged jointly and severally with the entity and such person shall be deemed guilty of the offence if the entity is convicted of the offence, unless the person proves that the offence was committed without his knowledge, consent or connivance and that he had exercised all reasonable precautions and exercised due diligence to prevent the commission of the offence.
Ouster of court's jurisdiction
The Ordinance provides that no action, suit, prosecution or other proceeding shall lie or be brought or maintained in any court against the Government, any public officer or any person appointed under the Ordinance to issue directions under the Prevention and Control of Infectious Diseases Act 1988, in respect of any act, neglect or default done or omitted by it or him in good faith in carrying out the provisions in the Ordinance.
Comments
The Ordinance is a scaled down version of the Emergency (Essential Powers) Ordinance 2021 that was promulgated in respect of the previous nationwide emergency that has ceased to be in force recently. Although the Ordinance confers wide powers on the Government, such powers are not unbridled and ought to be exercised only in furtherance of the reason for which the emergency was proclaimed, that is, to suspend the general election to the State Assembly in order to prevent any further increase in the spread of the COVID-19 pandemic if the general election is held.
It is submitted that the provision in the Ordinance that purports to absolve the Government and any public officer from liability for any acts or omissions in carrying out the provisions in the Ordinance and precludes the filing of court proceedings in respect of such matters is not a complete ouster of the courts' power to review such acts or omissions. This provision only operates when the Government or a public officer is able to prove to the satisfaction of the courts that the impugned acts or omissions have been carried out by it or him in good faith. Thus, the courts remain the final bastion against the abuse of the powers conferred under the Ordinance.
Originally Published 03 August 2021
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