Former chief justice Abdul Hamid Mohamad has reminded the Yang di-Pertuan Agong that any action in conflict with the advice of the attorney-general (AG) could be subject to legal challenge which could see the king’s decision nullified in court, adding that he is bound to follow such counsel even if it is “politically unpopular” and criticised by politicians.
“If the Yang di-Pertuan Agong turns his back on the AG’s advice, and in the event of a challenge against a decision or action of the Yang di-Pertuan Agong in court, the AG will find it difficult to take the role of defence,” he said, citing Article 145 (2) of the constitution.
His views were contained in a joint statement with senior law lecturer Shamrahayu Abdul Aziz, in response to recent calls from the Malay rulers as well as several proposals by politicians urging Putrajaya to reconvene Parliament and end the current state of emergency.
“We think that if there are others advising the Yang di-Pertuan Agong, it would be difficult to secure locus standi for intervening or defending in a court proceeding,” they said.
They also warned of attempts by some quarters to involve the palace in carrying out their wishes, although this is beyond the jurisdiction of the Malay rulers.
“The Yang di-Pertuan Agong and the Malay rulers must be careful not to allow the institution of the monarchy to fall into their traps. The wise Yang di-Pertuan Agong and the Malay rulers should be constantly vigilant that he is the constitutional monarch as entrusted by the constitution. His Majesty is also subject to the rule of law and must comply with the provisions of the constitution.”
They also said the government was ultimately responsible for all decisions made by the Agong based on the advice of the AG, the prime minister and the Cabinet, although these might be disliked by political parties on both sides, NGOs and the public.
“Their remedy is at the ballot box. They can criticise the government and the ruling party as loudly as they want, but they cannot criticise the Yang di-Pertuan Agong for acting on the advice of the prime minister, the Cabinet or the AG. That is how constitutional monarchy and parliamentary democracy work,” the statement said.
Hamid retired as chief justice in 2008 after more than 50 years of service in the judiciary.
The high-profile cases which he chaired included opposition leader Anwar Ibrahim’s appeal against his sodomy conviction of which Hamid, leading a Federal Court bench, acquitted him in 2004, as well as another landmark case in which the Agong was ordered to pay RM3.2 million in a suit by a commercial bank.
In the statement, Hamid said the Agong was bound to heed the advice of the AG, the prime minister and Cabinet in carrying out all official duties even if the advice “does not please His Majesty”.
“But as long as it is not about matters in which he has no discretion, he has to accept it taking into account his role to obtain adequate information as provided for under Article 40(1) of the constitution,” the statement added.
In the statement, Hamid and Shamrahayu, who is the incumbent Institution of the Malay Rulers Chair, Universiti Teknologi Mara, also dismissed the proposal by Dr Mahathir Mohamad for a national council that reports to the Agong, as well as those by Gua Musang MP Tengku Razaleigh Hamzah urging the rulers to appoint a new prime minister.
Mahathir had proposed the formation of a council patterned after the National Operations Council or Mageran which was set up in the aftermath of the 1969 race riots.
Hamid, reminding that the 1969 council was formed in the absence of a government following the general election that year, said having such a council reporting directly to the Agong was also untenable, as the government would ultimately be the source of its funding.
“Say the government follows the advice of the AG that the establishment of the Mageran was invalid, and therefore it was wrong for the government to fund its activities and, as such the government refuses to fund Mageran – how would Mageran work?”
Hamid also dismissed the call for the rulers to appoint a new prime minister, saying not only is the Dewan Rakyat not in session, it is also beyond their constitutional powers to do so.
“We state that the Conference of Rulers has no power to do so. Its duties and jurisdiction are set out by the constitution under Article 38, Third Schedule and Fifth Schedule of the constitution,” Hamid added.
Meanwhile, Hamid and Shamrahayu refused to comment on the separate statements by the Agong and the Malay rulers calling for Parliament to reconvene and for an end to the emergency, saying they were not privy to what was discussed during the special rulers’ meeting last week.
They said any decision must be legally accurate and not a matter of what is acceptable to political parties.
“It is the responsibility of the ruling party to handle partisan politics,” said Hamid and Shamrahayu.