Friday, September 24, 2021

Agong bound by Cabinet’s advice, apex court rules in dismissing Anwar’s challenge

A five-member bench says the Agong is the supreme head of the federation but remains bound by constitutional limits.

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The Federal Court today said the Yang di-Pertuan Agong is bound by the Cabinet’s advice, in a judgment dismissing a suit brought by PKR president Anwar Ibrahim seeking to declare the National Security Council Act as unconstitutional.

Anwar had sought the declaration on the argument that the NSC Act became law pursuant to an “unconstitutional amendment”, and that its enactment violated Article 149 of the constitution as well as Article 9 (2) on the freedom of movement.

Anwar had referred to a 1994 amendment to Article 66 under the Barisan Nasional government where he was the deputy prime minister, which states that a bill passed in Parliament shall automatically become law 30 days after it is presented to the Agong, even if it receives no royal assent.

In the judgment, the five members of the bench said the Agong was still bound by constitutional limits.

“The YDPA is no doubt the supreme head of the federation by virtue of Article 32 of the Federal Constitution (FC).

“However, Articles 39 and 40 of the FC provide that the YDPA shall act in accordance with the advice of the Cabinet or any minister authorised by the Cabinet except for matters under the YDPA’s discretion as stated in Clause (2) of Article 40 of the FC,” said the judgment written by Zaleha Yusof, Zabariah Mohd Yusof, Hasnah Mohammed Hashim, Mary Lim Thiam Suan and Rhodzariah Bujang.

The court further held that royal assent is never part of the executive acts of the Agong.

“It is the final step of the legislative process before a bill becomes law,” it said.

The ruling comes amid renewed debate on the powers of the Agong in the wake of a call by Sultan Abdullah Sultan Ahmad Shah in June to convene Parliament, as well as the recent move by the government to repeal the emergency ordinances.

Opposition MPs subsequently accused Prime Minister Muhyiddin Yassin of committing “derhaka” (treason) against the king.

The NSC Act was tabled during the Najib Razak administration in 2015. Among others, it provides for the establishment of the National Security Council chaired by the prime minister.

The bill did not obtain express royal assent, but became law in line with the expiry of the 30-day period after it was submitted to the Agong.

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