Knowledge Highlights 20 January 2021

On 12 January 2021, the Yang di-Pertuan Agong (“YDPA”) made a proclamation of emergency pursuant to Article 150 of the Federal Constitution by reason of grave emergency threatening the security, economic life and public order of the Federation arising from the COVID-19 pandemic (“Proclamation of Emergency”).

On 14 January 2021, the Emergency (Essential Powers) Ordinance 2021 (“Emergency Ordinance”) was gazetted.

In the Proclamation of Emergency, the YDPA declared that the emergency would be effective up to 1 August 2021 although it could be terminated any time earlier or later depending on the state of COVID-19 pandemic in the country. The Emergency Ordinance, which took effect retrospectively from 11 January 2021, made no mention of such emergency period, however.

Emergency Ordinance

We have set out some of the salient provisions of the Emergency Ordinance below.

Independent special committee

An independent special committee will be set up to advise the YDPA on the continuing existence of the grave emergency threatening the country due to the COVID-19 pandemic (section 2(1) of Emergency Ordinance). The members of the committee will be appointed by the YDPA.

Power to take temporary possession of land, building or movable property

Section 3 of the Emergency Ordinance gives power to the YDPA or any person authorised by the YDPA to take temporary possession of any land, building or movable property or any part thereof to be used in such manner as the YDPA or any person authorised by the YDPA deems expedient, notwithstanding any restrictions imposed on the use thereof under any written law or otherwise. In addition, the YDPA or any person authorised by the YDPA may also authorise, prohibit or restrict usage of such land or building. Any owner or occupier of the land, building or movable property is also required to provide any information in his possession relating to the land, building or movable property, demanded by or on behalf of the YDPA or any person authorised by the YDPA.

Compensation for the taking of temporary possession of any land, building or movable property will be assessed by a person authorised by the YDPA and such assessment of compensation may not be challenged in court (sections 5(1) and 5(2) of Emergency Ordinance).

Any person who does not comply with any demand or direction of the YDPA or any person authorised by the YDPA to take temporary possession of any land, building or movable property commits an offence punishable with a fine not exceeding RM5 million and/or imprisonment not exceeding ten years (section 9(1) of Emergency Ordinance).

Where the offender is a company, limited liability partnership, firm, society or other body of persons (each, an “entity”), a person who was at the relevant time a director, compliance officer, partner, manager, secretary or other similar officer of such entity may be charged severally or jointly in the same proceedings as such entity (section 9(1)(a) of Emergency Ordinance). In the event the company, limited liability partnership, firm, society or other body of persons is found guilty of the offence, then the director, compliance officer, partner, manager, secretary or other similar officer will be deemed to be guilty of that offence unless he can prove that the offence was committed without his knowledge and consent, and that he had taken all reasonable precautions and exercised due diligence to prevent the commission of the offence (section 9(1)(b) of Emergency Ordinance).

Demand for use of resources

The YDPA or any person authorised by the YDPA can also demand that any resources be utilised for the purpose that the YDPA or any person authorised by the YDPA thinks necessary (section 4(1) of Emergency Ordinance). Such “resources” include “human resources, facilities, utilities and assets, and the controller or manager of such human resources, facilities, utilities and assets” (section 4(4) of Emergency Ordinance).

Compensation in respect of the use of resources will be assessed by a person authorised by the YDPA and such assessment of compensation may not be challenged in court (sections 5(1) and 5(2) of Emergency Ordinance).

Similarly, any person who does not comply with any demand or direction of the YDPA or any person authorised by the YDPA to demand the use of resources commits an offence punishable with a fine not exceeding RM5 million and/or imprisonment for a term not exceeding ten years (Section 9(1) of Emergency Ordinance).

Directions for treatment, immunisation, isolation, observation or surveillance

The YDPA or any person authorised by the YDPA may appoint any person to issue directions for treatment, immunisation, isolation, observation or surveillance under the Prevention and Control of Infectious Diseases Act 1988 (section 6(1) of Emergency Ordinance), and such direction will be deemed to be a direction issued by an authorised officer under that Act.

Additional powers of armed forces

Upon direction by the YDPA or any person authorised by the YDPA, the armed forces will have all the powers of a police officer of whatever rank as provided under the Criminal Procedure Code and such powers will be in addition to the powers already provided to the armed forces under the Armed Forces Act 1972 (section 7(1) of Emergency Ordinance).

Power to exempt healthcare professional from complying with address of principal place of practice

The YDPA or any person authorised by the YDPA may exempt a healthcare professional from the requirement to carry out his or her practice at the principal place of practice specified in his or her annual practising certificate or its equivalent (section 8 of Emergency Ordinance).

The healthcare professionals covered by the exemption are those regulated by the following legislations (Schedule of Emergency Ordinance):

  • the Medical Act 1971;
  • the Dental Act 1971;
  • the Registration of Pharmacists Act 1951;
  • the Allied Health Professions Act 2016;
  • the Medical Assistants (Registration) Act 1977;
  • the Nurses Act 1950;
  • the Midwives Act 1966;
  • the Optical Act 1991; and
  • the Estate Hospital Assistants (Registration) Act 1965.

Protection against suits and legal proceedings

The Emergency Ordinance also provides for immunity from any action, suit, prosecution or any other proceedings in any court, to the Government, any public officer, and any person appointed to issue directions for treatment, immunisation, isolation, observation or surveillance under the Prevention and Control of Infectious Diseases Act 1988 for any act, neglect, default or omission by such person when carrying out the provisions of the Emergency Ordinance, provided that the person was acting in good faith (Section 10 of Emergency Ordinance).

Executive and legislative powers

The Federal and State bodies and individuals carrying out executive and legislative functions existing immediately prior to the issuance of the Proclamation of Emergency will continue to exercise the authority conferred on them for as long as the emergency is in force (section 11 of Emergency Ordinance).

Election of Parliament

The requirement under Article 54 of the Federal Constitution to fill any vacancy in the Senate and House of Representatives within 60 days, is currently of no effect. Such requirement will only apply (and time will only start to run) after the Proclamation of Emergency has been revoked or annulled (sections 12(1), 12(2) and 12(3) of Emergency Ordinance).

During the continuance of the Emergency, Parliament will not be dissolved after five years from the date of its first meeting (Section 12(4) of Emergency Ordinance). When Parliament is dissolved, a general election will not have to be held within 60 days from the date of dissolution and Parliament will not need to be summoned to meet on a date no later than 120 days from that date (section 12(5) of Emergency Ordinance). A general election will be held and a Parliament meeting will be summoned only on the dates that the YDPA thinks appropriate (section 12(6) of Emergency Ordinance).

Election of State Legislative Assembly

Provisions relating to an election for a State Legislative Assembly have been suspended during the duration of the emergency (section 13(a) of Emergency Ordinance). Any election for a State Legislative Assembly will only be held on the date the YDPA thinks appropriate after consultation with the respective Ruler or Yang di-Pertua Negeri (section 13(b) of Emergency Ordinance).

Parliamentary sittings

Provisions relating to the summoning, proroguing and dissolution of Parliament in the Federal Constitution have been suspended for so long as the emergency is in force (section 14(1)(a) of Emergency Ordinance).

The YDPA may summon, prorogue or dissolve Parliament on the date the YDPA thinks appropriate (section 14(1)(b) of Emergency Ordinance). Any meeting of Parliament which was summoned before the Proclamation of Emergency but was not held has been cancelled (section 14(2) of Emergency Ordinance).

State Legislative Assembly sittings

As for State Legislative Assembly sittings, provisions relating to summoning, proroguing and dissolution of a State Legislative Assembly in the Federal Constitution are of no effect for the duration of the emergency (section 15(1)(a) of Emergency Ordinance). A State Legislative Assembly may be summoned, prorogued and dissolved on the date the YDPA thinks appropriate after a consultation with the respective Ruler or the Yang di-Pertua Negeri (Section 15(1)(b) of Emergency Ordinance). Any meeting of a State Legislative Assembly which was summoned before the Proclamation of Emergency but was not held has been cancelled (Section 15(2) of Emergency Ordinance).

Prevailing law

In the event of any conflict or inconsistency between the provisions of the Emergency Ordinance and any other written law, the provisions of the Emergency Ordinance will prevail (section 18 of Emergency Ordinance).

 

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