COMMENT | A desecration of the rule of law

Ambiga Sreenevasan


COMMENT | It should be patently obvious by now that the Jan 11 proclamation of emergency and the ensuing Emergency (Essential Powers) Ordinance 2021 have primarily served to contain our Parliament, rather than the pandemic.

Repeated calls for the reconvening of Parliament, including by no less than the deputy speaker, have been ignored. Worse, the recent announcement by the home minister that Parliament will not convene until herd immunity is reached, not only insults our intelligence, but is alarming as it seems unlikely that herd immunity will be achieved any time soon.

Our Federal Constitution and indeed any functioning democracy based on the Westminster model provides for three arms of government namely, the legislature (Parliament), the executive, and the judiciary.

The doctrine of separation of powers ensures the necessary checks and balances between these three arms. Any attempt by one branch to unconstitutionally undermine another is a violation of this doctrine and must be resisted and rejected.

Article 150 of the Federal Constitution deals with the extreme measure of a proclamation of emergency. Article 150(3) is an important provision. It provides that the proclamation and any ordinance promulgated pursuant thereto “shall” be laid before both houses of parliament.

The article further provides, amongst other things, that the proclamation and ordinance shall cease to have effect if resolutions are passed by both houses annulling such proclamation or ordinance. In other words, the proclamation and ordinance must receive parliamentary oversight and scrutiny.

Although no time period is provided for, the proclamation and emergency ordinance must be laid before both houses, as soon as is practicable or reasonably possible.

Over four months have passed since the proclamation and neither it nor the emergency ordinance has been laid before...

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