A caretaker government’s advice on emergency proclamation is not binding on the Yang di-Pertuan Agong.
THIS column had on Jan 10 noted that the last date for the Dewan Rakyat’s dissolution is April 27; a general election must be held on or before June 26; and the next Parliament must be summoned on or before Aug 25.
This is presuming and praying that no emergency under Article 150 intervenes to suspend the general election or postpone the summoning of Parliament.
In response to the Jan 10 article, some readers have raised enthralling questions of constitutional politics.
First, can the Yang di-Pertuan Agong act on his own initiative to proclaim an emergency even if the Prime Minister does not so advise?
Second, if a PM, who fears defeat at the general election, improperly advises the King to declare an emergency and to postpone the elections, is the monarch bound by this advice or is it constitutionally permissible for him to refuse his premier’s counsel?
Third, is the King’s exercise or non-exercise of emergency power subject to challenge in the courts?
Subjective language: Article 150 states that “If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect”.
A literal interpretation of Article 150(1) appears to indicate that the proclamation of an emergency is within the sole discretion of the Yang di-Pertuan Agong and is within the subjective powers of the monarch under Article 40(2).
Article 40(2) states that the Yang di-Pertuan Agong may act in his discretion in the performance of three enumerated functions, namely appointment of the PM, dissolution of Parliament and convening of the Conference of Rulers, plus “in any other case mentioned in this Constitution”.
The subjectively worded powers of His Majesty under Article 150(1) appear to fall nicely within the category of “any other case mentioned in this Constitution”.
This interpretation is supported by some scholars like Hickling. It also gained credibility due to two historical events.
In the case of Madhavan Nair, then Prime Minister Tunku Abdul Rahman submitted in court that “I personally presented the said Ordinance to His Majesty… for his consideration and approval. Having considered the said Ordinance and after being satisfied … His Majesty approved the promulgation of the said Ordinance”.
In 1983, the then prime minister, Tun Dr Mahathir Mohamad, pushed through Parliament the Constitution (Amendment) Act 1983 which amended Article 150(1) 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…”
The 1983 amendment elicited strong opposition from the Conference of Rulers and was consequently repealed in 1984. But its story firmly planted the seeds of belief that in times of emergency, the Yang di-Pertuan Agong may act on his own without reference to the Cabinet. Otherwise, why was this amendment necessary?
The ground-breaking case of Public Prosecutor v Mohd Amin Mohd Razali (2000) lends partial credence to this view.
According to the High Court, if during the dissolution of Parliament there is no Cabinet in existence to advise the Monarch, then the King is empowered to issue a Proclamation of Emergency on his own.
Even if a caretaker government is in place, the caretaker government’s advice on national emergencies is not binding on the Yang di-Pertuan Agong.
King acts on advice: However, there is a long line of academic and judicial opinion that despite the subjective language of Article 150(1), the declaration of emergency by the monarch is a non-discretionary power to be exercised on advice.
This was also the opinion of the Reid Commission.
In Madhavan Nair v Government (1975), Justice Chang Min Tat opined that emergency rule does not displace the King’s position as the constitutional monarch, bound by the Constitution to act at all times on the advice of the Cabinet.
Reference may also be made to similar opinions in Teh Cheng Poh (1979), Stephen Kalong Ningkan v Tun Abang Haji Openg (No. 2) (1967); Balakrishnan v KP Perkhidmatan Awam (1981); Merdeka University (1982); Stephen Kalong Ningkan v Government (1968); Abdul Ghani Ali @ Ahmad (2001); and Karam Singh (1969).
In the light of the above cases, it is submitted that the proclamation of emergency by the King is not free of the constitutional requirement to act in accordance with the advice of the Prime Minister.
Article 150(1) that bestows emergency power must be read along with Article 40(1) and 40(1A) that impose a duty to act on advice.
Even under the Amin Razali ruling, if Parliament is sitting and the Cabinet is in existence, the Yang di-Pertuan Agong exercises his emergency powers on advice.
Judicial review: But what if the ruling party abuses emergency powers to subvert the Constitution, to overthrow unfriendly state governments and to postpone elections?
In India, the federal government has repeatedly abused emergency powers to remove elected state governments and to impose federal rule. Statistics indicate that state governments, often controlled by opposition coalitions, were federalised 103 times between 1950 and 1995!
The Supreme Court of India, therefore, intervened in S R Bommai’s case (1994) to hold that the validity of a proclamation can be judicially reviewed to determine whether it was issued on relevant material and whether it was in bad faith.
Malaysian jurisprudence is, however, generally in favour of judicial non-intervention on the issue of proclamation of an emergency: Stephen Kalong Ningkan (1968) and PP v Ooi Kee Saik (1970). A constitutional amendment in 1981 barring all judicial review of emergency powers under a new clause 150(8) seems to put the issue beyond all doubt.
However, there remain seeds here and there in the Kalong Ningkan cases that mala fide (bad faith) may be a ground for judicial scrutiny of emergency powers.
It remains to be seen whether these subdued voices will one day become mainstream.
Till then, it can be summed up that a government with a majority in parliament (but not a caretaker government) has the right to give binding advice to the King relating to the exceptional powers under Article 150.
However, if the government abuses its emergency powers for wrongful purposes, three possibilities come to mind. First, a sagacious monarch may delay, caution and warn. Second, he may refuse to issue the proclamation and his refusal cannot be reviewed by the courts because of Article 150(8) which cuts both ways. Third, there is some possibility of scrutiny by the courts of issues of mala fide – remote though this possibility is on existing jurisprudence.
>Shad Saleem Faruqi is Emeritus Professor of Law at UiTM. He wishes all Chinese brethren a Happy Chinese New Year.