Malaysia: COVID-19 - Emergency (Essential Powers) Ordinance 2021

In brief

On 12 January 2021, the Yang di-Pertuan Agong ("YDPA") declared a nationwide state of emergency. This declaration was done in light of the rising spread of Covid-19 cases in Malaysia and to aid the Movement Control Order which has since been re-imposed on all Federal Territories and the states of Penang, Johor Melaka, Selangor and Sabah until 26 January 2021.

This alert highlights the key components under the newly gazetted Emergency (Essential Powers) Ordinance 2021 deemed to have come into operation on 11 January 2021 in line with the Proclamation of Emergency made by the YDPA under Article 150(1) of the Federal Constitution.


Powers under the Ordinance

1. Establishment of an Independent Special Committee

An Independent Special Committee, the members of which are to be appointed by the YDPA will be established to advise the YDPA on the continuing existence of the grave emergency threatening the security, economic life and public order of the nation arising from the Covid-19 pandemic.

2. Powers to take Temporary Possession of Land, Building, or Movable Property and demand for Resources with Compensation

The YDPA or any "Authorized Person" may take temporary possession of any land, building or movable property for use as the YDPA or the "Authorized Person" deems expedient. Additionally, the YDPA or any "Authorized Person" may equally demand for any resources and give directions in relation to the utilization, management and control of such resources. Resources include human resources, facilities, utilities and assets.

Any compensation given for the temporary possession or demand of resources shall be assessed and made by the "Authorized Person" which cannot be challenged or question in any court of law.

Any contravention or a failure to comply with such directions or orders is an offence which upon conviction will result in a fine not exceeding RM 5 million or imprisonment of a term not exceeding 10 years or both. The offenders include a company, limited liability partnership, firm, society or other body of persons including any director, partner, manager or secretary.

3. Additional Powers of the Armed Forces

As long as the emergency is in force, the Armed Forces shall have all the powers of a police officer of whatever rank as provided for under the Criminal Procedure Code.

4. Legal Immunity for the Government, and any Public Officer 

Under the Ordinance, the Government and its officers are protected against all suits and legal proceedings for negligence or default done or omitted in good faith. 

5. Executive & Legislative Powers

The Prime Minister, the Cabinet, Menteri Besar, Chief Minister, State Executive Council or State Cabinet which existed before 11 January 2021 shall continue to exercise their functions.

The legislative functions to make subsidiary legislation under federal laws and state laws shall continue to be exercised by persons so authorized under such laws. 

6. Parliament & State Assembly

Parliament's term for five (5) years as provided for under Article 55 of the Federal Constitution shall stand dissolved and deleted as long as the emergency is in force. Any meeting of Parliament which has been summoned before the coming into operation of the Ordinance is hereby cancelled. 

Vacancies to the Dewan Rakyat, Dewan Negara and any State Legislative Assemblies shall not be filled. All state laws relating to elections shall not have any effect during the emergency period.


Amidst debate of the constitutionality of the Ordinance, it is apparent that the Ordinance sees the conferring of substantial powers to the executive arm of Malaysia's trias politica with only the YDPA to provide the necessary check and balance. The state of emergency is expected to end on 1 August 2021, subject to advice by the Independent Committee.

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