Agong can ‘consider’ constitutional expert’s Opinion on ‘PM’s Advice’

Agong can ‘consider’ constitutional expert’s Opinion on ‘PM’s Advice’.

The gov’t does not have ‘consent of the governed, no legitimacy’.

Constitutional law academician, Shad Saleem Faruqi, has perhaps advanced the most “novel developments” in law on two Definitions i.e. “advice by the Prime Minister” and “Prime Minister”.

It must be stated at the very outset that Opinion is not law. Only the court can declare law.

The Don was taking the cue from the Federal Constitution when answering queries from listeners at an online lecture, “Understanding the Malaysian Constitution” on Thurs 24 June 2021.

There’s much food for thought here for the Agong on the said two Definitions viz. “advice by the Prime Minister” and “Prime Minister”, the contradictions notwithstanding.

Indeed, the Agong can cut the Gordian Knot by reconvening Parliament, in fact without being advised by the Prime Minister, and even appoint a new head of gov’t if push comes to shove.

The matters are non-justiciable.

At the risk of sounding like a musical record stuck in the groove, I will say it again. No court will go against the Agong.

Already, according to the media, the Agong has asked the Speaker of the Dewan Rakyat and Dewan Negara President to see him on the double. It can’t be just for tea and English scones and small talk on the weather at this time of the year in England. True, it’s not in the Federal Constitution. Yet, it’s happening.

Interestingly, Dewan Negara President Rais Yatim was quoted as saying in the media, in recent days, that the Agong can reconvene Parliament without being advised by the Prime Minister. Rais has a PhD in law.

The Agong has probably no intention to seek Declarations on points of law, under Article 130, as the legal fraternity publicly implored the head of state in the media. I will keep on the safe side and say that I stand corrected.

At the risk of being accused of splitting hairs and/or degenerating into semantics, it appears “settled” at the online lecture that Prime Minister under Article 43(4) must mean one who commands the confidence of the majority of lawmakers in the Dewan Rakyat, the lower house of Parliament.

Briefly, if we paraphrase the online lecture, there’s no proof that the Prime Minister can advise the Agong on anything except for offering to resign.

Again, in law, it can be said that the gov’t has no legitimacy since there’s no consent of the governed. Sovereignty resides with the people.

It’s also law that even an “invalid” law remains “valid” unless the court rules otherwise.

Here, it seems that some difficulties arise, and only the Agong can find the way forward.

Para 14(1)(b) of the Emergency (Essential Powers) Ordinance 2021, stipulates that Parliament could be “summoned, prorogued and dissolved on a date as the Yang di-Pertuan Agong thinks appropriate”.

“So, many people now say that it’s the decision of the Agong, not the decision of the Prime Minister,” said Shad Faruqi. “In my view, even Emergency powers are under advice.”

“The problem that has arisen in the last few months is that many people are interpreting the Emergency Ordinance literally,” he noted on the rule of law, the basis of the Constitution.

The letter of the law only does not mean the sum total of the rule of law. There’s greater emphasis on the spirit of the law in the rule of law.

Shad Faruqi agreed the Agong can ask for the PM’s resignation or even dismiss the Cabinet if the gov’t loses support in Parliament.

However, the devil is in the details. The tenure of the current Administration appears to come from the Emergency Ordinance.

Under Para 11 of the Emergency Ordinance, the Prime Minister and Cabinet existing immediately prior to the proclamation of Emergency continues to exercise the executive authority of the Federation under Article 39, delegated by Administration by the Agong.

As law students would have discovered by now, the Agong can of course withdraw the delegation of executive authority and exercise it directly until GE15 in 2023, by citing “special circumstances” . . . hung Parliament, worsening pandemic, elusive herd immunity and an economy continuing to head south. The Agong would probably not go there as it may create a precedent that no one wants.

FOOTNOTE: The Malaysian Constitution is a misnomer.

The Federal Constitution is not the Malaysia Constitution.

The Federal Constitution is based on the Federation of Malaya Agreement 1948 and the Independence of Malaya Act 1957.

It’s a written/codified document i.e. in one place. Read Article 160(2).

The M’sia Constitution is based on the Malaysia Agreement 1963 (MA63), the other constitutional documents on Malaysia, and the Federal Constitution.

It’s an unwritten/uncodified document i.e. not in one place. The High Court of Borneo and the superior courts refer to it from time to time on case law and for Declarations on points of law

The British Constitution, likewise, is unwritten/uncodified. Students of the Magna Carta would know.

Author: fernzthegreat

Joe Fernandez holds a honours degree in management, majoring in economics, and has opted from academia in law to being a jurist. He was trained professionally on the job as a journalist. He's a longtime Borneo watcher, keen on the history and legal aspects of Malaya's presence in Sabah and Sarawak. He teaches the English language privately and has emerged as a subject matter expert in public examination techniques.

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