Emergency powers and parliamentary government in Malaysia: Constitutionalism in a new democracy

Abstract

This thesis is a situational study of the use and exercise of emergency powers in Malaysia, undertaken from the perspective of the principles underlying the Malaysian Constitution. The primary focus and perspective are Malaysian, and I use comparative materials where I consider they may help to Illuminate that perspective and the way in which emergency powers have been used.

A unique situation has been created whereby the Malaysian Government has the option of taking measures under one or other of two legal regimes. The thesis, therefore, examines the development of this parallel government system. it includes discussion of the considerations that animated writing reserve powers into the Malaysian Constitution and the near Institutionalisation of the state of emergency In Malaysia, using this historical background to focus on the role of the judiciary In crisis situations, the incorporation of certain traditional elements of Malay society into the Constitution, and the existence of racial 'bargaining' in developing the Constitution.

The thesis then examines the distinct legal order created by a state of emergency, within the context of the reality of the Malaysian polity. Hence, there is an examination of the four actual instances when an emergency was proclaimed in the country.

An examination is also undertaken of the various amendments made to Article 150 over the years which has reduced much of the safeguards originally built into the provision. This examination suggests that Article 150 in Its present form, is debilitative of parliamentary government largely because of the dual system of law-making created by a state of emergency.

The thesis therefore provides an insight into the working of a major constitutional democracy seeking to reconcile the need to maintain emergency powers and realise the objective of a parliamentary system envisaged by its Federal Constitution.