Barakbah LP:

This is a petition praying for:-

(a) an order declaring that the measure known as the Emergency (Federal Constitution and Constitution of Sarawak) Act, 1966, is ultra vires the Federal Parliament, invalid, null and void and of no legal force and effect; alternatively,

(b)an order declaring that cls 4 and 5 of the measure known as the Emergency (Federal Constitution and Constitution of Sarawak) Act, 1966, are ultra vires the Federal Parliament, invalid, null and void and of no legal force and effect.

The events which led up to this case may be summarised as follows.

On 22nd July, 1963, the petitioner was appointed Chief Minister of Sarawak. On 17 June 1966 His Excellency the Governor of Sarawak issued a declaration that the petitioner had ceased to be the Chief Minister of Sarawak and purported to appoint another Chief Minister, Penghulu Tawi Sli, in his place. The petitioner instituted proceedings in the High Court in Borneo in order to challenge the validity of that declaration by His Excellency the Governor. On 7 September 1966, the Acting Chief Justice of Borneo, Mr Justice Harley, gave judgment for the petitioner in these proceedings.* He held, and I quote his words, that: "The plaintiff (that is the petitioner) is and has been at all material times Chief Minister of Sarawak", and he granted an injunction restraining Penghulu Tawi Sli from acting as Chief Minister. On 14 September 1966, His Majesty the Yang di-Pertuan Agong proclaimed a state of emergency under art 150 of the Constitution of Malaysia. That Proclamation of Emergency reads:

WHEREAS WE are satisfied that a grave Emergency exists whereby the security of a part of the Federation, to wit the State of Sarawak, is threatened:

AND WHEREAS art 150 of the Constitution provides that in the said circumstances WE may issue a Proclamation of Emergency:

NOW, THEREFORE, WE, Tuanku Ismail Nasiruddin Shah ibni Al-Marhum Al- Sultan Zainal Abidin, by the Grace of God of the States and territories of Malaysia Yang di-Pertuan Agong in exercise of the powers aforesaid do hereby proclaim that a State of Emergency exists, and that this Proclamation shall extend throughout the territories of the State of Sarawak.

As this case mainly depends on the true construction of Art. 150 of the Constitution it will be necessary to quote the whole of the article. It is as follows:

1 If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security or economic life of the Federation or of any part thereof is threatened, he may issue a Proclamation of Emergency.

2 If a Proclamation of Emergency is issued when Parliament is not sitting, the Yang di-Pertuan Agong shall summon Parliament as soon as may be practicable, and may, until both Houses of Parliament are sitting, promulgate ordinances having the force of law, if satisfied that immediate action is required.

3 A Proclamation of Emergency and any ordinance promulgated under cl (2) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance, but without prejudice to anything previously done by virtue thereof or to the power of the Yang di-Pertuan Agong to issue a new Proclamation under cl (1) or promulgate any ordinance under cl (2).

4 While a Proclamation of Emergency is in force the executive authority of the Federation shall, notwithstanding anything in this Constitution, extend to any matter within the legislative authority of a State and to the giving of directions to the Government of a State or to any officer or authority thereof.

5 Subject to cl (6A), while a Proclamation of Emergency is in force, Parliament may, notwithstanding anything in this Constitution or in the Constitution of the State of Sarawak, make laws with respect to any matter, if it appears to Parliament that the law is required by reason of the emergency; and art 79 shall not apply to a Bill for such a law or a