Agong ‘right’ even when ‘wrong’, letter of the law only isn’t law at all.
No court will go against Agong on his role in the Constitution.
Former Chief Justice Abdul Hamid Mohamad has taken issue, in a lengthy 11-page statement in Bahasa on Thurs 9 Sept in his Blog, on the Agong and brother sultans allegedly playing a role in politics in the past one year.
According to media reporting on the Blog statement, ex-CJ Hamid queried the need for the Agong to consult brother sultans on the Emergency declared early this year, the appointment of the Prime Minister, and the Istana’s decree that Prime Minister Ismail Sabri must face a confidence motion in Parliament when it reconvenes on Mon 13 Sept.
He also queried various statements issued by the Istana over the last year on the political situation in the country.
The bottomline, according to ex-CJ Hamid, is that the public may perceive that the Agong and brother sultans may be interferring, for want of a better term, in the political situation in the country.
That may be like saying that the judge is interferring on issues in conflict between parties in dispute. It’s a contradiction in terms when it’s the parties in dispute that approached the court and asked for its intervention on their issues in conflict to bring closure by ruling on their submissions for a resolution.
Out of court . . .
No judge in the world will interfere if parties in dispute subsequently agree to settle issues in conflict out of court.
The judge would merely record the out of court settlement so that the issues in conflict won’t flare up again between the parties in dispute.
We are of course talking about civil cases. In criminal cases, there are different considerations. It’s not necessary to go into them in this Opinion piece.
Earlier, on Mon 21 June this year in his Blog, ex-CJ Hamid issued a joint statement in Bahasa with senior law lecturer Shamrahayu Abdul Aziz.
The joint statement argues on the role of the Attorney General under Article 145(2). They implied, according to the media reporting, that the AG may not be able to defend the Agong if he does not accept advice and was taken to court. They raised the prospects of the Agong’s decisions being nullified by the court.
The matter does not arise. No court will go against the Agong in the performance of his role in the Constitution. The matter is non-justiciable.
The Agong is ‘right’ even when he’s ‘wrong’, the letter of the law only isn’t law at all.
Attorney General . . .
Article 145(2) reads . . . “It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.”
The joint statement also refers to the Agong obtaining information under Article 40(1) and the Role of the Conference of Rulers spelled out in Article 38, Third Schedule and Fifth Schedule of the Constitution.
Both statements did not touch on the AG publicly disagreeing with the Agong. If the AG privately disagrees with the Agong, it’s understandable. In that case, there’s no reason why the AG cannot defend the Agong in court, if push comes to shove.
If the AG publicly disagrees with the Agong, it has been argued by many in the legal fraternity, he should be sacked without much further ado.
Those who want to read the above statements in full can visit https://www.tunabdulhamid.my/
PART 2 . .
At this juncture, we need to remind ourselves that Opinion isn’t law. Only the court can declare law. Parliament makes laws. But only the court can interpret the intention of Parliament and the intention of the framers of the Constitution. The work of the court is to find the law and declare it. The lawyers look for the law and point it out to the court.
Law exists, and has always existed, based on common sense, universal values and the principles of natural justice.
Law must have source to have jurisdiction, authority and power.
The court is only about law. It’s not about ethics, moral values, theology, sin, God, justice or truth.
Before addressing the ex-CJ’s concerns further, we can bring Chief Justice Richard Malanjum into the picture.
Malanjum said in a farewell address, not so long ago, that “the letter of the law — i.e. written law — isn’t the sum total of the rule of law”. In the rule of law, the basis of the Constitution, there’s greater emphasis on the spirit of the law read together with the letter of the law.
Dictatorship . . .
In short, the letter of the law by itself isn’t law at all. It’s dictatorship since there’s no democracy. The letter of the law by itself remains synonymous with rule BY law i.e. rule BY man.
Malanjum was raising his concerns on the legal fraternity, the court and the judiciary. He implied, in discreetly disclosing private comments by lawyers, that they were mistaken in focussing on the letter of the law as the be all and end all of law.
Clearly, based on the then CJ’s farewell address, we can be forgiven for concluding that the legal fraternity, the court and the judiciary may be weak on the spirit of the law.
Law, ultimately, remains the power of language on the nature of human relationships and how they are and/or can be regulated.
The complexity of the matter can be further explored based on what the University of London, for example, tells law students in the modules . . . “It’s not possible for anyone to know law” . . . “The LLB, being an academic programme, has nothing to do with court room work and legal skills. It can only be used in teaching.”
Legal education reforms . . .
The university further advised that it’s public perception, gov’t and the Bar which feels that lawyers admitted to the High Court must have the LLB before they can do the English Bar exams. In M’sia, the Certificate in Legal Practice (CLP), run by the Legal Profession Qualification Board (LPQB), is a programme equivalent to the English, Australian and S’pore Bar, among others.
England and Wales, among others, have since decided that they must cast the net wider to bring more talent into the legal profession which was once noted for brilliant lawyers. The LLB has been deemed no longer necessary to sit for the English Bar before admission to the High Court as advocate and solicitor.
Anyone with a non-law honours degree can go through a six months to 18 months law conversion course, and sit for the English Bar before admission to the High Court.
Advocates and Solicitors take different routes unless a lawyer wants to perform both roles.
M’sia needs reforms badly not only in the judiciary but also law education. The LPQB does not recognise law conversion courses.
Common Bar Examination . . .
At the same time, the M’sian gov’t has been sitting for years on the proposed Common Bar Examination. At present, law graduates do not have to sit for the CLP if they graduate from local public universities.
Article 8 says that in law there can be no discrimination. That was seen in the High Court decision on Thurs 9 Aug. M’sian mothers married to foreigners can now pass their citizenship status, by operation of law, to their children born overseas.
PART 3 . . .
In taking up the cudgels again on ex-CJ Hamid and the senior law lecturer, it’s interesting that they didn’t mention the Perak case law 2009.
It was this case law that affirmed that the sultans, being hereditary rulers, have “residual” — i. e. reserve — powers. They can determine “confidence” in a proposed head of gov’t by “other means”. Agong is sultan.
It has been argued by some in the legal fraternity that the sultans no longer have the “absolute” power they had before the British came. In that case, we need a Declaration on a point of law on the Perak case law 2009. The Federal Court sits as the constitutional court.
In fact, before the British came, the sultanates were not territorial states. They were riverine kingdoms confined to collecting toll at the mouths of the main waterways. The sultanates, after they became territorial states, were named after the main waterways.
The Perak case law 2009, as ruled by the Federal Court in the Tues 1 Sept 2020 majority decision on the Sabah Constitution, isn’t applicable to non-sultanates.
Thy kingdom come . . .
Of course, we can argue until the cows come home or thy kingdom come, that the Agong should decide on the appointment of the Prime Minister on his own i.e. not be seen publicly as consulting brother sultans or even the Raja Permaisuri.
If the people are unhappy that the Agong not only consulted with brother sultans, but the Istana even issued statements on the matter, the same exercise can be carried out discreetly. It makes no difference.
On Fri 20 Aug, when the Agong consulted brother sultans, the sultans of Johor, Kelantan and Perlis did not turn up at the Istana. That’s their prerogative.
However, no court will tell the Agong not to consult brother sultans on the appointment of the Prime Minister or the declaration of Emergency. It will not advise him on how he should play his role in the Constitution. He has prerogative and discretionary powers.
No court will interfere in the prerogative and discretionary powers of gov’t and management unless abuse can be proven. There’s case law by Judge Raja Azlan Shah on this matter. Raja Azlan went on to become Raja Muda (crown prince) and Sultan in Perak and finally Agong. Raja Nazrin, his son, is currently Deputy Agong.
Allegations of abuse . . .
Abuse is highly subjective. The court rarely and reluctantly, if at all, considers Applications on abuse. Such Applications may not meet the threshold. That means the merits of the case will not be heard.
Conventions, the working of the Constitution, are even more important than the latter document.
No court will hear Applications on conventions as they are not law. The court is only about law.
When Muhyiddin Yassin resigned as Prime Minister on Mon 16 Aug, the Agong could have appointed him Interim Prime Minister but instead he became Caretaker Prime Minister until Sat 21 Aug.
Agong could have pointed the politicians in the direction of Parliament House and closed the Istana gates.
Then, Parliament could have considered a confidence motion based on at least three or more candidates being nominated by a proposer and seconder for the post. If no candidate secures 51 per cent of the votes of those present and counted, a run-off could be held between the top two candidates.
Under Article 63(1) — “Privileges of Parliament” — “The validity of proceedings in either House of Parliament or any committee thereof shall not be questioned in any court.”
PART 4 . . .
Agong could have invited Opposition Leader Anwar Ibrahim, based on parliamentary conventions in the Commonwealth, to form the gov’t.
Instead, he invited all MPs to nominate a candidate, unconditionally, for Prime Minister. The Opposition could have declined to participate.
Speaker Azhar Harun, as decreed by the Istana, invited all lawmakers by email on Tues 17 Aug to nominate the Prime Minister-designate by letter faxed to the Istana by 4pm on Wed 18 Aug. He cited Article 43(2)(a) of the Federal Constitution.
Based on media reports, Anwar Ibrahim received 105 unconditional votes.
Gua Musang MP Tengku Razaleigh reportedly nominated himself. He was willing to support Anwar if the latter was chosen by the Agong as Prime Minister-designate.
Umno vice president Ismail Sabri received only 32 unconditional votes and 82 conditional votes. Total 114 votes.
The conditional votes were from Perikatan Nasional (PN) 50 votes, Gabungan Parti Sarawak (GPS) 18 votes and Umno “court cluster” 14 votes. Earlier, the “court cluster” reportedly had privately promised to support Anwar, probably conditionally.
It was the 14 votes of the Umno “court cluster” that brought down Muhyiddin Yassin on Mon 16 Aug, leaving him with 100 MPs in the 222-seat Parliament. Two seats, Batu Sapi in Sabah and Gerik in Perak, are vacant.
Opposition not interviewed . . .
Agong only interviewed, one by one, Ismail Sabri’s 114 nominations, unconditional and conditional, on Fri 20 Aug.
Agong appointed Ismail as Prime Minister on Sat 21 Aug at 2.30pm. Since Ismail Sabri had only 32 unconditional nominations, Agong decreed that he face a confidence motion when Parliament reconvenes on Mon 13 Sept.
It must be noted that from Mon 16 Aug to Sat 21 Aug, no lawmaker expressed objections on the Agong taking a leadership role in determining by “other means” who should be chosen as Prime Minister-designate. Therein lies the spirit of the law. The Perak case law 2009, which works only if all concerned participate, refers.
It’s needless to say that Opposition Leader Anwar Ibrahim remains very disappointed and deeply hurt that he was not chosen as Prime Minister-designate. If Agong had picked him, the 18 GPS nominations and another by Razaleigh would have shifted to him, probably conditionally in the GPS case.
If Ismail Sabri falls, as widely expected, the Opposition Leader will be in the running again for the PM’s post, sooner rather than later. A week, it’s said, is a long time in politics.
Hopefully, this time, the Agong will invite Anwar to form the gov’t instead of determining by “other means” who should be Prime Minister. It’s highly unlikely that the Opposition would participate in another interview exercise at the Istana.