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Published in Astro Awani & Malay Mail, image by Astro Awani.
Lawmakers should put forth amendments or additions to Article 150 of the Federal Constitution to provide emergency legal provisions specific for natural security crises arising from conventional warfare, biological, chemical, digital/cybersecurity crises, natural disaster and other issues, instead of a “blanket” one.
For example, a health crisis such as a pandemic may result in public hospitals meeting certain thresholds indicating a trajectory of a breaking point, which would justify the proclamation of an emergency specific for a health crisis, along with the necessary and relevant ordinance(s).
Under this specific (therefore, limited) ordinance, the law would only be focussed and targeted in providing for the conscription of private general practitioner (GP) clinics and other private health institutions to ensure national healthcare burden by public, teaching, and military hospitals is shared and distributed to all capable bodies.
True enough, this is already possible under the previous Ordinances. Under Sections 3 and 4 of the Emergency (Essential Powers) Ordinance 2021, the government can acquire any relevant properties (such as private buildings or facilities) and resources such as utilities, assets and may even include the services of doctors and nurses.
However, there is a need to narrowly define the provisions. A specific Ordinance could be limited to treating Covid-19 related cases instead of a “blanket” and unlimited takeover of a health facility. In other words, private health institutions and relevant facilities may be demanded to provide the relevant resources governed under the specific ordinance.
Given that the compensation for properties taken and resources demanded under an Emergency Ordinance cannot be challenged, the specific and targeted amendment to Article 150 should call for reasonable compensation scheme(s) or at least agreed methodologies for determining compensation for different types of emergencies.
In developing these specific amendments, there should be discussions with leaders and stakeholders related to the type of emergency in question.
For example, an emergency specific to a health crisis would require the engagement with public health experts and relevant stakeholders to formulate reasonable compensation scheme(s), ready to be invoked under a certain ordinance.
These initial stakeholder engagements will help ensure better cooperation when such laws are enforced. Psychologically, it shows mutual respect and inclusiveness in responsibility and decision-making, despite the law allowing properties, services and resources to simply be demanded for.
Of course, it should be understood by all stakeholders that the very nature of an emergency calls for compensation schemes and other related matters to sway in favour of public needs.
Also, under a specific and limited Emergency Proclamation, unrelated/irrelevant things such as the suspension of Parliament need not be enforced. This allows mechanisms of check-and-balance since Parliament may convene and could even decide against the Emergency Ordinance. In contrast, under the incumbent “blanket” Emergency Ordinance, it would be normally expected that Parliament would not convene.
Although it is true that political turmoil complicates addressing a certain national security issue or a crisis, history has shown that the inability for Parliament to convene did not stop politicking either. If anything, it made the political tension to brew even more behind the scenes.
Now it is understood that the declaration of emergency is the prerogative of the Yang di-Pertuan Agong (YDPA), and as mentioned by constitutional expert Prof Dr Shamrahayu A Aziz to The Edge Markets: “the prerogative power is the power of the monarchy which has been present, even before the drafting of the Federal Constitution of Malaya (Malaysia)”.
Thus, any attempts for amendments must be in acknowledgement of this.
According to Prof Dr Shamrahayu, although it is true that the prerogative power of the YDPA ceases once Parliament convenes, the returned legislative powers enable the Parliament to pass an ordinance empowering the YDPA to make laws.
Relatedly, and similar to Section 2 of the Emergency Ordinance 2021, another amendment to Article 150 should be the requirement for the establishment of an independent special committee to advise the YDPA on the continuation of the specific emergency, whereby the YDPA shall appoint committee members from representatives of the ruling party/coalition and the opposition, experts and related members.
This way, the ability to call for a specific type of emergency allows better check-and-balance without diluting the prerogative powers of the YDPA. The ability to call for a blanket emergency remains intact, although by consequence or necessary implication, it would require a higher threshold to be invoked.
Other than constitutional amendments, other policy considerations should – in view of the potential man-power shortages in times of crises – extend to reviving the National Service, whereby the focus should be on national unity, disaster relief and medical first-aid, in addition to basic military training.
National Service graduates among school-leavers can be called forth under an emergency ordinance to assist in vaccination centres, quarantine centres, and assist at any facilities under National Disaster Management Agency (Nadma).
Bloomberg opinion columnist and Milbank Family Senior Fellow at the Hoover Institution at Stanford University Niall Ferguson mentioned that “the next global disaster is already on its way”, and that “we simply cannot know which of all the possible future disasters will strike and when. All we can do is learn from history how to construct social and political structures that are at least resilient and at best antifragile”.
We should take this valuable experience in fighting the pandemic to formulate a national security blueprint, starting with boosting legal provisions, followed by the necessary structural changes for better management and readiness for future emergencies.
Ameen Kamal is the Head of Science & Technology at EMIR Research, an independent think tank focused on strategic policy recommendations based on rigorous research.
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