1. There is currently a contentious debate on whether the YDPA can summon Parliament using his own discretion, instead of adhering to the constitutional monarchy convention of acting on the advice of the PM/Cabinet.
2. The Attorney General has recently issued a statement that, in such a matter, the YDPA must still act on the advice of the Cabinet.
3. In my view, the Attorney General has adopted the correct position in law.
YDPA To Act On Advice of the PM Under the Constitution
4. Let us start with the basics. Article 55 of the Constitution states that “the Yang di-Pertuan Agong shall from time to time summon Parliament and shall not allow six months to elapse…”.
5. However, in a constitutional monarchy like Malaysia, the YDPA is constitutionally obliged to act on the advice of the PM/Cabinet. Article 40(1A) states that, in exercising his functions under the Constitution or federal law, the YDPA must always act in accordance with the advice of the PM/Cabinet.
6. There are only 3 specified exceptions to this rule, whereby the YDPA is able to exercise his own discretion. These exceptions are listed in Article 40(2): (a) the appointment of the PM, (b) withholding consent for a request to dissolve Parliament and (c) requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses.
7. Article 40(2) does say that the YDPA may act on his own discretion “in any other case mentioned in this Constitution”. Prof Shad Saleem Faruqi is of the view – which I wholly adopt – that the phrase “in any other case mentioned in the Constitution” must mean “any other case (explicitly) mentioned”. For example, Article 139(4) which states that members of the Public Services Commission shall be appointed by “the Yang di-Pertuan Agong in his discretion but after considering the advice of the Prime Minister and after consultation with the Conference of Rulers…”.
8. Article 55 on summoning Parliament does not fall within the Article 40(2) exceptions (whether explicitly or impliedly), and therefore, in general, the power to reconvene Parliament in effect lies with the PM/Cabinet – and not the YDPA.
Does This Rule Still Hold True Under This Emergency?
9. Some quarters (including Dr Rais Yatim & lawyer GK Ganesan) have opined that the Emergency (Essential Powers) Ordinance 2021 [Ordinance] – in particular Section 14 read with Section 18 – has delegated the power to reconvene Parliament to the YDPA himself.
10. In my respectful view, the abovementioned opinions are incorrect, from the lenses of constitutional law & statutory interpretation.
11. Section 14 states that, for so long as the Emergency is in force, “the Parliament shall be summoned, prorogued and dissolved on a date as the Yang di-Pertuan Agong thinks appropriate”.
12. Section 18 states that, if there is any inconsistency between the Ordinance and any written law, the Ordinance shall prevail.
13. First, Section 14 does not in any way nullify Article 40(1A) of the Constitution, which states that the YDPA is to always act on advice of the PM/Cabinet. Similarly worded provisions under the Constitution exist, and it has always been understood that the YDPA acts on the advice of the PM in each of such instances.
14. There is a misconception that the entire Constitution is suspended when the Emergency was declared. This is not true. Section 17 of the Ordinance states that the powers given under the Ordinance are in addition, and not in derogation of, existing powers under the written law, which includes the Constitution.
15. Most recently, GK Ganesan argued that Article 40(1A) only applies to the YDPA’s functions under the Constitution or federal law, “federal law” means “laws passed by Parliament”, and therefore Article 40(1A) doesn’t apply to the Ordinance since it was not passed by Parliament. Again, with respect, this is a flawed interpretation. Article 160 defines “federal law” as “an Act of Parliament”, not “an Act passed by Parliament” (the word “passed” is not mentioned). And Article 150(2C) thereafter states that any Ordinance promulgated in an Emergency “shall have the same force and effect as an Act of Parliament”. There is hence no doubt that Article 40(1A) applies in equal measure to an Emergency Ordinance.
16. In gist, Section 14 of the Ordinance cannot be read in isolation from Article 40(1A). Article 40(1A) is still in effect, and must hence be given effect.
17. On the other hand, Section 18 is irrelevant for the simple fact that there is no inconsistency between Section 14 of the Ordinance and Article 40(1A) in the first place.
18. Second, if such an opinion holds weight, it would create an illogical and unwholesome state of affairs in Executive governance during the Emergency. Under the same Ordinance, the YDPA is phrased to have the power to take temporary possession of property (Section 3), demand the use of resources from private entities (Section 4) and to make regulations to give into effect the Ordinance (Section 16). Surely, such powers are not meant to be exercised by the YDPA himself using his own discretion? Clearly, it is the PM/Cabinet which exercises such executive functions. All of such powers under the Ordinance were enacted with Article 40(1A) in mind – and Section 14 is no exception.
19. Third, and perhaps reassuringly, it would appear the YPDA has acknowledged that Parliament can only be summoned by His Royal Highness upon the advice of the PM under Article 40(1A). Paragraph 3 of the Palace’s statement dated 24th February 2021 (issued after the Ordinance in January 2021) is self-explanatory = “sebagaimana yang difikirkan sesuai oleh Seri Paduka Baginda atas nasihat Perdana Menteri”.
20. Make no mistake – we all direly want Parliament to be reconvened as soon as possible. But in such a quest, let us not set aside the sacred rules governing constitutional monarchs. The responsibility of paralysing Malaysian parliamentary democracy falls squarely on the shoulders of the PM, and the PM alone. The PM himself has to bear the public ire & historical ignominy over this cowardly anti-democratic political manoeuvre.