State Governments and the 2021 Emergency: Unfettered Powers at the Centre

On 12 January, the Agong and the Prime Minister separately announced that the former had approved an Emergency Declaration for Malaysia that took effect as of 11 January. The justification for this decision was the seriousness of the Covid-19 situation, which in fact was already being dealt with by the Movement Control Order 2.0 to begin on 13 January. The Emergency has been considered by several analysts as unnecessary given the existing MCO.

That said, what are the implications of the Emergency on the 13 state governments throughout the country? What has been rigorously discussed is that Parliament is suspended and no general election will take place. On that note, state legislatures are also suspended and no state election will be allowed throughout this period. The most immediate implication of this is that the Sarawak state election that is due to be held by 17 August this year may have to be postponed – if the Emergency is prolonged beyond the scheduled end date of 1 August.

According to Emergency Ordinance 2021, the state governments and their executive councils or cabinets are still in power. Their legislative assemblypersons (Ahli Dewan Undangan Negeri, or ADUNs) are also supposed to continue carrying out their duties. On the surface of things, it would seem that the status quo remains since all state governments will carry on as per usual, exercising both their executive and legislative functions.  

In reality, there are many questions that arise.

First, without the legislators actually being permitted to conduct legislative assembly sittings, it will be impossible for ADUNs – as their federal counterparts in Parliament – to perform their “legislative functions” like scrutinise budgetary expenditure, amend or legislate new laws, or provide oversight over any executive decisions being made. Motions of confidence – or no confidence – will also not be voted upon during this period.

While it may be feasible for select committees to meet online, there has not been any precedent of the entire legislative assembly sitting taking place online. And even if permitted, not all legislative assemblies especially in the more rural parts of Malaysia may have the necessary internet connections and bandwidth to do so. So how will state assemblypersons actually exercise their legislative functions?

Second, can the federal government intervene into state affairs? The Federal Constitution says it can. Article 150(4) gives the federal government overwhelming powers to intervene into state matters during an Emergency. Despite the legitimacy of state governments, the federal government can legally step in to direct state governments to act in ways they dictate. The only exception to this would be for matters under Islamic laws, Malay customs, native laws or customs in Sabah and Sarawak, religion, citizenship or language. This is in line with Article 150(6A).

The federal government could very well step into state public policy matters, instructing state governments to transfer state land to the federal government, take over control of local councils, replace local councillors with their own appointees, and more. The Ninth Schedule of the Federal Constitution spells out what state governments control, the list of which includes land, local government, and agriculture and forestry. Regardless of whether this will actually happen, the fact is the federal government can legitimately step in to take control, and that’s alarming.

The federal government could very well step into state public policy matters, instructing state governments to transfer state land to the federal government, take over control of local councils, replace local councillors with their own appointees, and more.

Finally, the Emergency also paves the way for political intervention of the centre in the case of inter-party or intra-coalition leadership disputes. In the past, the federal government did in fact declare states of emergency in several states when there were political disputes, and these resulted in changes in state governments: in Sarawak in 1966, and in Kelantan in 1977. The question is whether the current federal government would make use of the present Emergency to do the same within states if there were uncertainties surrounding the confidence of a certain leader’s majority, and hence command of the assembly.

While there are serious consequences of the Emergency at the national level, the effects at the state level are equally as chilling if followed through. In short, the Emergency has provided the Executive arm of the federal government unfettered powers, giving it far-reaching abilities to intervene into the very intricate functioning of all 13 state governments throughout the country if it so wished. Some have expressed frustration at having included Sarawak into the national emergency too; Sarawak had only recorded less than 2,000 cases when the emergency was announced. Indeed, these sentiments are fair.

It remains to be seen when the Emergency will be called off, and it would be wise at that point in time to examine what – if any – consequences would have been on the state governments then. Would state legislators really be permitted to perform their legislative functions as set out by the Emergency Ordinance? Would the federal government have intervened in any public policy matter under the states’ constitutional control? Would they have interfered politically in any state-level leadership disputes that arose? The next few months will provide a hard look into how the federal government might use its Emergency powers to intervene in state governments’ functions.

2021/18