Thursday, December 9, 2021

AG clears the air on power to reconvene Parliament

Current state of emergency does not change the Agong's role as a constitutional monarch who must act based on government's advice, says Idrus Harun.

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Attorney-General Idrus Harun today said the Yang di-Pertuan Agong remains a constitutional monarch bound by the advice of the Cabinet despite the state of emergency, weighing in on the debate sparked by the king’s call last week for Parliament to reconvene.

He said the Agong must exercise his power to summon a parliamentary proceeding as provided for under Article 55 of the Federal Constitution as well as the current emergency ordinance, but within his role as a constitutional monarch.

“As such, in accordance with the position of the Yang di-Pertuan Agong as the constitutional monarch, the exercise of his power to convene Parliament shall be carried out on the advice of the Cabinet or the advice of a minister acting under the general authority of the Cabinet, and in accordance with that advice, pursuant to Articles 40 (1) and (1A) of the Federal Constitution,” Idrus said in a statement.

A similar stand has been made by several former senior members of the judiciary, including former attorney-general Mohamed Apandi Ali, former chief justice Abdul Hamid Mohamad, and former Federal Court judge Gopal Sri Ram.

Idrus said the prime minister or his deputy also has the power to fix the date of the Dewan Rakyat and Dewan Negara sittings, adding that at least 28 days’ notice must be given before the start of each term.

Meanwhile, Idrus said the Agong’s executive powers, spelt out in Articles 39 and 40 of the constitution, must be read together with Article 43 which “clearly requires His Majesty to appoint a Cabinet to advise him in the exercise of his functions”.

Idrus said such a role was also clearly stated by the British-era Reid Commission tasked with drafting the Federal Constitution, quoting the commission’s report stating that the Agong, while he is the head of state, “must be a constitutional ruler”.

“He must therefore act on the advice of his ministers with regard to all executive action…,” Idrus said, quoting the 1957 report.

He further quoted a 1975 judgment which ruled that a state of emergency does not change the Agong’s status as a constitutional monarch.

“Emergency rule which passes the legislative power from Parliament to the Yang di-Pertuan Agong has not displaced his position as the constitutional monarch, bound by the constitution to act at all times on the advice of the Cabinet,” the judgment reads.

In February, the palace refuted the notion that the declaration of emergency bars Parliament from convening, saying the Yang di-Pertuan Agong can allow Parliament to convene at a suitable date during the state of emergency on the advice of the prime minister.

The state of emergency, which is expected to continue until August, was implemented in mid-January under Clause (1) of Article 150 of the Federal Constitution.

Sultan Abdullah Sultan Ahmad Shah said last week after a series of audiences with politicians that a Parliament sitting should be held as quickly as possible to allow the emergency ordinances and National Recovery Plan to be debated in the Dewan Rakyat.

In a later statement, the Malay rulers agreed with the king that Parliament should be allowed to convene as soon as possible.

They also agreed that there was no need to extend the state of emergency beyond its expected deadline of Aug 1.

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