Prime Minister Najib Tun Razak and Umno have been reminded that Article 150 of the Federal Constitution empowers only the King to proclaim a state of emergency. If Umno loses in the 13th general election, Barisan Nasional chairman Najib Tun Razak may be left with one option, override all rules of the game and declare a state of emergency in accordance with Article 150 of the federal constitution to prevent the surrender of the political power to his adversaries.
Although it is hardly considered proper.
A government can only declare a state of emergency if there exists a genuine large scale threat to our national democratic political system, the state security, the country’s economic and financial system, public order and peace, racial harmony, the country’s transport and communications system and the likes such as from imminent attacks by saboteurs, destruction from natural calamities, people’s uprising, foreign military threats and war.
The political power of a party or that of an individual leader being under threat by their political opponents does not justify the declaration of an emergency.
Proclamation of state of emergency is a very serious matter because the declaration itself is an overriding law which superceedes all other laws of the country.
Such kind of declaration will give the Prime Minister absolute power to deal with the threatening situation.
As a rule, during such situation, the security forces are given more power to help bring the situation back to ‘normal’.
It should be the last option when all other means have failed.
One of the casualties that bear the brunt of this operation is definitely the 13th general election!
Under such circumstances , democracy is as good as dead .
King must consent
As I have mentioned earlier there are three branches of a government – the executive, parliament (legislature) and judiciary.
Though they have independent functions the executive is answerable to the parliament.
This is confirmed by Article 43 1 (3) which states that the cabinet is collectively responsible to the parliament. This proves that the legislature is the supreme authority in the country .
If the executive government cannot handle the threats to the nation as mentioned, then the PM must refer to the parliament first for approval to declare the state of emergency before bringing it to the attention of the King in accordance to Article 44.
Article 44 states that the legislative authority of the federation shall be vested in a parliament which means all laws must go through the legislature for approval including the declaration of state of emergency.
Hence the proclamation of state of emergency must go through the parliament who would either approve or otherwise, and then referred to the King for his consent in accordance with Article 150 which empowers only the King to proclaim a state of emergency.
This Article does not mention the right of the PM to even advise the King on the matter. That right is the sole prerogative of the Agong.
This is a third form of the check-and balance system of parliamentary democracy vis-a-vis constitutional monarchy.
No government after parliament dissolved
However once the parliament is dissolved giving way to the 13th GE there is technically no executive government existing.
This is to the advantage of Najib who thinks he can use his caretaker role to declare a state of emergency and to pressure the King to get his consent.
Even so, the PM still cannot force the King to agree if the latter finds there is no real need for a state of emergency.
Article 39 states that the executive power of the federation is vested in the King .
As head of state and federation, the King has every right to call for the parliament to convene and put to vote as to the need to declare a state of emergency, but in the absence of the parliament (if dissolved to give way for election) he can still decide on his own whether to give consent or reject it.
This special power of the Agong is to ensure the PM does not abuse the power of the executive.
If the King decides to reject the declaration, then it becomes null and void.
March to palace, if you must
Umno must not forget that our political system is a parliamentary democracy and constitutional monarchy where the parliament is the supreme body and the position of the King is the head of the federation and state, both having powers in their own right.
As the 13th GE gets underway, Najib may use the security laws to arrest a number of the Pakatan Rakyat candidates.
The number of arrests will more than tally with the expected number of seats the Pakatan will likely win by a majority.
Say if the Pakatan wins by a majority of 10 seats then Najib will swoop on the leaders numbering more than 10 persons to prevent them forming a majority government .
If the candidates who win cannot attend the special parliament sitting then their absentee votes cannot be counted for the purpose of formation of government especially if the process of electing the PM has to go through the parliament according to Article 43 of the federal constitution.
To prevent any uprising and consequential arrests, Najib may then apply the provision of Article 150 to declare a state of emergency.
However if Najib still thinks he has the right to pressure the King to agree, then the opposition should march to the Istana to call for the King to reject such unlawful act.
Awang Abdillah is a political observer and a veteran writer in Sarawak. He is an FMT columnist.
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