Response To Tommy Thomas Re State Of Emergency

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By Mat Dollah
I read with grave concern the article penned by the Ex-AG on “Why declaring Emergency would be unconstitutional” published October 24, 2020 4:46 PM.
In his opinion piece, Tommy states that:
“I have since March scrupulously adhered to the convention that it is not proper for a former public officer to comment on the merits or demerits of policies and decisions made by his successor.”
It is a pity that he holds his beliefs so lightly and is prepared to ignore those to act improperly merely to exercise a grudge against the government that replaced him.  For him to speak out in such a manner is entirely inappropriate.
Tommy has zero responsibility in this matter – none whatsoever – he just has an axe to grind. PERIOD! In writing his article Tommy has completely missed many critical points – but mainly that it is the Yang di-Pertuan Agong that is considering the request and will make the proclamation.
Make no mistake – the world is in the midst of a pandemic that has resulted in the death of millions.  Malaysia is not alone in proposing to declare a state of emergency.  Japan, Ethiopia, 48 of the 50 states of the USA, Armenia, Estonia, Georgia, Latvia, Moldova, Romania, Slovakia, Czech Republic, Hungary, Spain and Italy have all declared a state of emergency directly as a result of this pandemic.
Tommy points out that there are a number of safeguards in the Constitution to ensure that there is a reluctance to rush into a proclamation of a state of emergency.  The fact that there is such a reluctance, and yet it is being considered, should be some indication as to the seriousness of the situation that has made this a reality – something that Tommy seems to have overlooked. 
While Tommy points out that the ramifications of an emergency are massive, and there are safeguards in place to restrict its use, it must be pointed out that the restrictions do not prevent its use.  There are circumstances where it continues to be available for use where warranted.
It seems that Tommy has joined the ranks of the conspiracy theorists in saying that the virus does not pose an imminent threat.  This is a very dangerous path to take, that places the lives of our vulnerable citizens at serious risk.
When Tommy states that the “real decision maker” is the Prime Minister and the Agong acts on his advice, he implies that the Agong is merely “a puppet” of the Prime Minister and is incapable of forming his own decisions and assessing the advice provided to him to form the basis of his decision.  I am shocked that this comes from a person who claims to be a constitutional expert!!
This is an appalling assumption that seriously undermines confidence in the Agong and is simply untrue.  The Agong is perfectly capable of assessing the advice provided to him and to make a rational decision with regards to the imposition of a state of emergency.   The fact that the Agong is considering the advice provided to him shows that the Agong sees the issues for what they are.
In Tommy’s criticisms of the Agong’s potential proclamation (remember this is what it is), he states,
“When it suits this government, it has boasted about how well they combated and contained the spread of Covid-19,”
and he goes on further to state :
“The same government cannot then claim that overnight, Covid-19 has become so “threatening” that we have a “grave emergency”. However, terrible Covid-19 is in Sabah, it does not warrant the declaration of a national emergency.”
 Again, Tommy conveniently ignores certain facts – like the fact that this is not a virus that respects the actions to date of anyone to control the spread.
Tommy himself identifies that Article 150(1) provides that if grave emergency exists whereby the security or the economic life or public order in Malaysia is threatened, a proclamation of emergency may be issued.
Tommy goes into some of the detail about the relevant requirements.  In doing this, he completely discounts a public health issue as a contributing factor to the stated requirements.  The impact of the rapid spread of this virus cannot be underestimated.  What has not been as widely publicised is the fact that there are many that contract the virus and recover but are left scarred for life with serious health conditions that they may never recover from (weakened heart, respiratory system, damaged internal organs).  It cannot and should not be measured only in death – although looking at the number of deaths worldwide should be enough in itself to realise that this virus should not be ignored.
To state that the nation’s health is not a ground ignores the impact of a health issue on the entire nation.  If the nation is ill due to the virus, how would that be good for the economy?  How can an overwhelmed health system be good for the economy?
 
Those drafting the Constitution saw this and included public health as a consideration for curtailing the freedoms of citizens.  Article 9(2) states:
Prohibition of banishment and freedom of movement
9(2) Subject to Clause (3) and to any law relating to the security of the Federation or any part thereof, public order, public health, or the punishment of offenders, every citizen has the right to move freely throughout the Federation and to reside in any part thereof.
What is more concerning about Tommy’s opinion is that Tommy is careful to only quote a portion of Article 150 to support his claims.  In doing so, he shows his total disregard for the role of the Agong.  The quote should have been the following:
Proclamation of emergency
(1) If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic 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 effect.  The key part of article 150 is “IF THE YANG DI-PERTUAN AGONG IS SATISFIED THAT A GRAVE EMERGENCY EXISTS”.  Clearly the Agong must be satisfied, and therefore HE must issue the proclamation.
As it is the Agong that issues the Proclamation, not the Prime Minister, Tommy’s criticism is of the Agong.
Another convenient segment of the Article quoted by Tommy left out is Article 150 (2) which says:
(2) A Proclamation of Emergency under Clause (1) may be issued before the actual occurrence of the event which threatens the security, or the economic life, or public order in the Federation or any part thereof if the Yang di-Pertuan Agong is satisfied that there is imminent danger of the occurrence of such event.
 So, the Constitution allows for the circumstances whereby the event may not have come about – but there is an imminent danger of the occurrence of such event.  Can anyone truly say with the second and third waves of the virus that there is not imminent danger of the occurrence of such event?
Again, it is the Agong that must be satisfied of this requirement, having been fully briefed on the information available to the government.
Is Tommy claiming that he has all the information that the Agong is assessing before arriving at his decision?  I seriously doubt it, as Tommy is merely a bystander now.  He infers that he is somehow being kept informed of all relevant information – this is a fairly arrogant view of his own importance.
Tommy’s attack on the Finance Minister is mere supposition and the exercising of his grudge resulting from historical events ( see the Goldman Sach’s negotiation issue and Minister’s statement in Parliament regarding Tommy!!.
A further flaw in Tommy’s argument is that he states that
“it can certainly be argued that the courts can review a decision to declare emergency.”
Tommy cites the example of Brexit in the United Kingdom as the justification for this statement.  Perhaps Tommy forgets that Malaysia is not the UK?  The UK does not have a written constitution – it is governed for the most part by common law, implemented by the Courts.
However, Malaysia does have a constitution, replacing the need for the Courts to form the governing law by way of common law.  It is therefore the Constitution that should be turned to in such circumstances, not common law as quoted by Tommy.  Article 32 of the Constitution states the following:
Supreme Head of the Federation, and his Consort
32 (1)       There shall be a Supreme Head of the Federation, to be called the Yang di-Pertuan Agong, who shall take precedence over all persons in the Federation and shall not be liable to any proceedings whatsoever in any court except in the Special Court established under Part XV.
For those of you who are unaware, Part XV refers to proceedings against the Yang Di-Pertuan Agong and the Rulers, which states:
No action to be instituted against the Yang di-Pertuan Agong or a Ruler except with the consent of the Attorney General personally. I must have missed something here – has Tommy been reinstated as the Attorney General?  I don’t think so.
Further to this, Article 150(8) states:
(8)       Notwithstanding anything in this Constitution—
(a) the satisfaction of the Yang di-Pertuan Agong mentioned in Clause (1) and Clause (2b) shall be final and conclusive and shall not be challenged or called in question in any court on any ground; and
(b) no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of—
(i) a Proclamation under Clause (1) or of a declaration made in such Proclamation to the effect stated in Clause (1);
(ii) the continued operation of such Proclamation;
(iii) any ordinance promulgated under Clause (2 b);
or
(iv) the continuation in force of any such ordinance.
So, for all of Tommy’s talk of taking the matter to Court, I wouldn’t hold your breath for that – it might be detrimental to your health….
Finally, Tommy states,
“For all these reasons, I implore the prime minister to withdraw this option. Rather, the problem is created by the 222 MPs. The solution therefore lies in their hands.”
 Sadly, this further indicates his lack of understanding of the Constitution – it is not for the MPs to withdraw their decision – again, it is the Agong’s decision.
Writer is a practising lawyer
 

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