Is the Article 150 power to declare or revoke an Emergency or to set up a National Operations Council as in 1969 a discretionary or a non-discretionary function?
OUR Constitution has invested the Yang di-Pertuan Agong with vast powers and functions in the executive, legislative and judicial fields and in relation to Islam.
A computer check indicates that the words “Yang di-Pertuan Agong” occur in the Federal Constitution 274 times!
If all of these 274 mentions indicate the existence of discretionary powers, then His Majesty is obviously an absolute and not a constitutional monarch.
It is submitted that the proper approach to constitutional interpretation is that no provision conferring power and function on the King should be interpreted literally or in isolation but must be read in the light of Articles 40(1) and 40(1A), which require His Majesty to act on advice.
Articles 40 and 40(1A) must be grafted onto every Article where the words “Yang di-Pertuan Agong” occur unless the provision explicitly confers discretion.
The powers and functions of our King are divisible into two broad categories:
> Non-discretionary functions, which are exercised on advice and constitute the bulk of his functions.
Concerning these, the Monarch may advise, caution, warn and delay but must, in the last resort, accept the advice rendered; and
> Discretionary powers, which are exercised in his own judgment.
The King may consult anyone including his brother Rulers, the prime minister, attorney general, respected public or private figures, or any experts he may choose to summon to the Palace. But ultimately, the mantle of responsibility falls on his great shoulders.
Discretionary functions are mentioned in Article 40(2) and cover the following critical matters of state: appointment of a prime minister; withholding of consent to a request for dissolution of Parliament; convening of the Conference of Rulers; and “any other case mentioned in this Constitution”.
It is submitted that the words “any other case mentioned in this Constitution” must mean “any other case (explicitly) mentioned”, for example concerning the appointment of the Public Service Commission under Article 139(4); appointment of the Education Service Commission under Article 141A(2); appointment of other Commission members under Article 143(1)(a); and appointment of State Governors under the 8th Schedule, Item 19A.
In several situations, the King’s personal discretion is necessarily implied.
These situations are the right under Article 40(1) to ask for any information from the government; delaying legislation by 30 days under Article 66(4A); appointment of a caretaker prime minister after Parliament is dissolved under Article 43(2); and appointment of an interim, minority, provisional or unity government if there is a deeply fractured or “hung Parliament” with no faction commanding an absolute majority.
In the past few weeks, the question on many lips is whether the Article 150 power to declare or revoke an Emergency or to set up a National Operations Council as in 1969 is a discretionary or non-discretionary function.
It is submitted that the King’s emergency powers are exercisable on advice.
Despite the subjective language of clause (1) of Article 150 (“If the Yang di-Pertuan Agong is satisfied”), it is noticeable that nowhere in Article 150 is there any explicit mention of personal discretion.
In several court cases, like Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli (No 2) (1967), M Madhavan Nair (1975), and Teh Cheng Poh (1979), it has been ruled that emergency powers are subject to Article 40(1).
In Teh Cheng Poh, there is this telling statement from the Privy Council that when one finds in the Constitution or federal law powers conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of opinion or is satisfied, the reference to his opinion or satisfaction is, in reality, a reference to the collective opinion or satisfaction of members of the Cabinet.
Despite the above judicial decisions, there are contrasting views that Article 150 powers are independent of the prime minister’s advice.
These views are anchored on several facts.
First, in 1983, then prime minister Datuk Seri Dr Mahathir Mohamad pushed through Parliament the Constitution (Amendment) Act 1983, which amended Article 150 to read: “If the prime minister is satisfied that a grave emergency exists he shall advise the Yang di-Pertuan Agong accordingly and the Yang di-Pertuan Agong shall then issue a Proclamation”.
This amendment elicited strong opposition from the Conference of Rulers and was repealed in early 1984.
The story behind the repeal lends credence to the view that emergency powers under Article 150 are not subject to the prime minister’s advice and are personal to the Monarch.
Second, in October 2020, the present Yang di-Pertuan Agong is known to have refused the prime minister’s advice to proclaim an Emergency.
The refusal was not challenged in a court of law by the prime minister and sets a political precedent of the throne supplying a check and balance against the political executive’s use of emergency powers.
Third, the Emergency Ordinance of Jan 14, this year, in section 2 establishes an “Independent Special Committee” appointed by the King “to advise the Yang di-Pertuan Agong on the continuing existence of the grave Emergency”.
Why have this independent committee if the King is bound by Cabinet advice?
Fourth, in the case of PP v Mohd Amin Mohd Razali (2000), the learned judge, Zulkefli J., suggested that in relation to Article 150’s emergency powers, though the King is bound by the advice of the prime minister, the prime minister whose advice is binding on the King must be one with democratic legitimacy in Parliament.
On May 15, 1969, there was no Parliament and the prime minister was a caretaker prime minister without parliamentary backing.The judge ruled that in some circumstances, like during the dissolution of Parliament when the prime minister is a mere caretaker, the King is not bound by the advice of the prime minister and can act independently.
Perhaps the Mohd Amin Mohd Razali precedent will also apply if the prime minister is an interim prime minister (like Dr Mahathir was in February 2020).
What about our circumstances today?
There is a duly appointed prime minister and Cabinet in place. An Emergency is in operation.
Under section 11 of the Ordinance of Jan 14, the prime minister and Cabinet have the security of tenure as long as the Emergency lasts, i.e. till Aug 1.
Parliament is in suspension under section 14 of the Ordinance.
But on Aug 1, the laws about Parliament to reconvene will kick in.
The guarantee of security of tenure for the prime minister will expire. It is a matter of conjecture whether the prime minister will seek an extension of the Emergency.
What if the prime minister faces a vote of no-confidence in the reconvened House (or if the House is not in session), a challenge to his authority under the Datuk Seri Nizar Jamaluddin precedent of 2009 in Perak?
Is the King entitled under the Constitution’s spirit of parliamentary democracy to advise the prime minister to settle the issue of confidence first before seeking an extension to the existing Emergency proclamation or the issuance of a new one?
What if, after Aug 1, the prime minister loses a vote of no-confidence in the House and nobody else can secure a stable majority in the “hung parliament”?
Will this be a ground for the King to act independently to proclaim a new Emergency due to the collapse of civil government and to set up a National Operations Council?
These are untested and untried issues. What adds further complexity is that under Article 150(8), the satisfaction of the Yang di-Pertuan Agong cannot be challenged in a court of law.
The writer is the holder of the Tunku Abdul Rahman Chair at UM, and the Tun Hussein Onn Chair at ISIS Malaysia. The views expressed here are entirely his own.