Was Agong’s decision not to proclaim emergency lawful?

As per Istana Negara’s press statement on Oct 25, we know clearly that there was a request by Prime Minister Tan Sri Muhyiddin Yassin to the Yang di-Pertuan Agong to proclaim an emergency pursuant to Article 150(1) and 150(2B) of the Federal Constitution purportedly to combat Covid-19.

While we do not know the details of the prime minister’s request, based on the Palace’s statement, a few matters are clear.

First, Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah is of the view that the government has been effective and successful in combating the pandemic.

The King had also expressed his confidence in the government led by Muhyiddin to formulate policies and implement enforcement actions to curtail the spread of the coronavirus.

Hence, the Agong was satisfied that there was no need for any emergency in Malaysia or in any part thereof due to Covid-19.

This decision by the Agong not to accede to the Prime Minister’s request was considered by some to be “unprecedented”. Several academics and former government servants argued that by “constitutional convention”, Al-Sultan Abdullah ought to have accepted the Prime Minister’s advice.

Is that so?

The Constitution is clear that it is not in all circumstances mandatory for the Agong to accede to the Prime Minister’s request.

Quite a few law academics and lawyers, with respect, erroneously pointed to Article 40(1) of the Federal Constitution to say that the Agong must act on the advice of the Prime Minister. The fact of the matter is that Article 40(1) says that the Agong shall act on the advice of the Cabinet or a Minister acting under the general authority of the Cabinet except as otherwise provided by this Constitution.

It therefore should be clear that there are instances in the Constitution where the Agong may exercise his own discretion, independent of the advice of the Prime Minister or the Cabinet.

Article 40(1A) reads: “In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.”

For whatever political purposes Article 40(1A) may have been inserted by the then Parliament, it is my humble view that it may be interpreted to mean that where the Agong is to act on advice, it must be so specified in the Constitution itself. Again, this Article does not impose a mandatory Constitutional duty on the Agong to only act on advice from the Cabinet.

It is my humble view that Article 40(1A) further supports the argument that there are instances whereby the Agong can act on his own initiative contrary to Cabinet advice.

I believe law academics generally accept the Privy Council case of Teh Cheng Poh v PP (1979) as having laid down the law that the Agong does not exercise any of his functions under the Constitution on his own initiative but he has to act in accordance with the advice of the Cabinet.

Lord Diplock’s pronouncement on this matter has admittedly disturbed me for many decades as I have always opined that his reasoning is, with respect, flawed.

First, in the judgment, Lord Diplock seemed to have overlooked the words “except as otherwise provided by this Constitution” which appears in Article 40(1) of the Constitution. Had Lord Diplock considered this phrase (unless the Article was phrased differently in 1978), he would not have reasoned that the Agong only acts on the advice of the Cabinet.

Here’s to fully understand what Lord Diplock said:

“Although this, like other powers under the Constitution, is conferred nominally upon the Yang di-Pertuan Agong by virtue of his office as the Supreme Head of the Federation and is expressed to be exercisable if he is satisfied of a particular matter, his functions are those of a constitutional monarch and except on certain matters that do not concern the instant appeal, he does not exercise any of his functions under the Constitution on his own initiative but is required by Article 40 (1) to act in accordance with the advice of the Cabinet.

“So when one finds in the Constitution itself or in a Federal law powers conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affair exists or that particular action is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the Cabinet, or the opinion or satisfaction of a particular Minister to whom the Cabinet have delegated their authority to give advice upon the matter in question.”

Second, with respect, due to his erroneous conclusion that Article 40(1) “does not allow the Agong to exercise any of his functions under the Constitution on his own initiative but is required to act in accordance with the advice of the Cabinet”, he superimposes this flawed reasoning to erroneously equate “satisfaction” of the Agong to mean nothing more than the collective opinion of the Cabinet.

In layperson language, by Lord Diplock’s reasoning, the Agong is merely a rubber stamp of the collective opinion of the Cabinet.

Applying this case, many academics argue that the Agong, therefore, must act on advice of the Cabinet when such request is made for the proclamation of emergency pursuant to Article 150(1) of the Constitution.

Teh Cheng Poh’s case, in my humble view, also seems inconsistent with other provisions of the Constitution on the issue of whether the Agong must always act on advice of the Cabinet whenever he exercises any of his functions under the Constitution.

For example, Article 40(2) provides circumstances where the Agong is empowered to act solely based on his own initiative or discretion. It is my humble view that Article 150(1) is yet another such Constitutional
provision where the Agong has the discretion to make his own decision and does not have to mandatorily accept advice from the Prime Minister.

To appreciate my argument, Article 150(1) states: “If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.”

Looking at the above Article, there are two important words that can answer the question as to whether the Agong has the discretion to proclaim or not to proclaim an emergency or he must act on the advice of the Prime Minister without discretion. The two words are “satisfied” and “may”.

If the Agong is constitutionally compelled to act on the Prime Minister’s advice then why then does the Constitution require the precondition that the Agong must be satisfied that a grave emergency exists?

When the Constitution says the Agong “may issue a proclamation”, which part of the word “may’ convert it into a “shall”, Article 150(2) again refers to Agong being satisfied that there is an imminent danger of the occurrences of threats to the security, economic life or public order in the country.

We need to keep in mind Article 40, as discussed earlier.

The proclamation of an emergency has far reaching consequences and political history around the world has shown how emergencies have been abused to deny civil liberties and to solidify political power by politicians.

Hence, I would argue that Article 150 of the Federal Constitution gives the discretion to the King to act as a check and balance so that the nation is not sacrificed at the altar of political struggles.

As such, it is my humble view that the Agong had acted wisely and in compliance with the Constitution in rejecting the government’s advice for an emergency.

This is the personal opinion of the writer and does not necessarily represent the views of Twentytwo13.

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