Seeking solutions to a constitutional crisis – Rajan Navaratnam
The law offers options to solve ongoing impasse; one just needs to know where to look
The special Dewan Rakyat sitting that began on Monday sparked controversy on Day 1 itself. – Information Department pic, July 30, 2021
By Rajan Navaratnam
EVENTS of the past week have sparked a lot of debate and renewed interest in our constitution and parliamentary democracy.
This is unfortunate as all efforts and focus should be geared towards saving lives and repairing the economy following the devastating Covid-19 pandemic.
I have been asked by various parties, be they the media, politicians or fellow lawyers, about my take on the goings-on in Parliament since the special sitting was convened on July 26.
Like I tell everyone, I am not interested in politics. Politics is divisive and confusing.
But when there is confusion, clarity can always be sought by referring to the law.
So, let me list some of the frequent questions I have been asked in recent days.
Are the emergency ordinances still in force or have they been revoked?
The Prime Minister’s Office says that they have been revoked because the prime minister had advised the Agong to annul the emergency ordinances. According to PMO, the Agong has to act in accordance with the prime minister’s advice as stipulated under Article 40(1) of the constitution.
Article 40 of the constitution has to be read in its entirety. In this regard, Article 40(1) states that the Agong, in the exercise of his functions under the constitution or federal law, shall act in accordance with the advice of the cabinet, but in the same breath, it also states except as otherwise provided by the constitution.
To put it simply, the Agong may refuse to act under this provision even though advised by the cabinet to do so.
Article 150 is another provision in the constitution that gives the Agong the discretion to proclaim an emergency, and His Majesty has the power to decline such a proclamation when advised by the cabinet, as was done by His Majesty when Tan Sri Muhyiddin Yassin asked the rulers to declare an emergency in October last year.
This separation of power was affirmed in the Federal Court case of Datuk Seri Anwar Ibrahim v Perdana Menteri 2010, where the apex court said Article 40(2) of the constitution divides the functions of the Agong into two categories: functions that His Majesty may exercise in his discretion, and those that the king must exercise in accordance with the ministerial advice.
So, to say that the king must, in all instances, act on the advice of the cabinet in performing his functions under the constitution, in my view, is incorrect.
Alternatively, assuming for a moment that the king must annul the ordinances when advised by the cabinet, the ordinances would remain in force as the king has yet to give his assent thereto.
By Rajan Navaratnam
EVENTS of the past week have sparked a lot of debate and renewed interest in our constitution and parliamentary democracy.
This is unfortunate as all efforts and focus should be geared towards saving lives and repairing the economy following the devastating Covid-19 pandemic.
I have been asked by various parties, be they the media, politicians or fellow lawyers, about my take on the goings-on in Parliament since the special sitting was convened on July 26.
Like I tell everyone, I am not interested in politics. Politics is divisive and confusing.
But when there is confusion, clarity can always be sought by referring to the law.
So, let me list some of the frequent questions I have been asked in recent days.
Are the emergency ordinances still in force or have they been revoked?
The Prime Minister’s Office says that they have been revoked because the prime minister had advised the Agong to annul the emergency ordinances. According to PMO, the Agong has to act in accordance with the prime minister’s advice as stipulated under Article 40(1) of the constitution.
Article 40 of the constitution has to be read in its entirety. In this regard, Article 40(1) states that the Agong, in the exercise of his functions under the constitution or federal law, shall act in accordance with the advice of the cabinet, but in the same breath, it also states except as otherwise provided by the constitution.
In other words, where the constitution makes provisions for the Agong to act in his own discretion, His Majesty need not heed the advice of the cabinet. This is further fortified by virtue of Article 40(2), which states that the Agong may, in his discretion in the performance of his functions, appoint a prime minister or withhold consent to a request for the dissolution of Parliament.
To put it simply, the Agong may refuse to act under this provision even though advised by the cabinet to do so.
Article 150 is another provision in the constitution that gives the Agong the discretion to proclaim an emergency, and His Majesty has the power to decline such a proclamation when advised by the cabinet, as was done by His Majesty when Tan Sri Muhyiddin Yassin asked the rulers to declare an emergency in October last year.
This separation of power was affirmed in the Federal Court case of Datuk Seri Anwar Ibrahim v Perdana Menteri 2010, where the apex court said Article 40(2) of the constitution divides the functions of the Agong into two categories: functions that His Majesty may exercise in his discretion, and those that the king must exercise in accordance with the ministerial advice.
So, to say that the king must, in all instances, act on the advice of the cabinet in performing his functions under the constitution, in my view, is incorrect.
Alternatively, assuming for a moment that the king must annul the ordinances when advised by the cabinet, the ordinances would remain in force as the king has yet to give his assent thereto.
The Agong turned down Prime Minister Tan Sri Muhyiddin Yassin’s request for a state of emergency to be declared last October. – Facebook pic, July 30, 2021
The privy council, in the case of Teh Cheng Poh v PP 1978, held through the judgment of Lord Diplock that any revocation can be done only either by resolutions passed in Parliament or by the Agong himself, and if the king fails to do so, even the courts have no power to revoke them.
There is no stipulated time frame in the constitution for the king to act, and to date, there has been no confirmation of a royal assent. So, until that royal assent is given, or Parliament revokes them, the ordinances are still in force. A mere proposal to revoke is not tantamount to the ordinances having been revoked or annulled.
Can the law minister be investigated for treason or offences under the Penal Code?
There is no law in Malaysia that criminalises offences committed against the Agong. Without any existing legal provisions, it can be said that treason is not an offence in Malaysia, and therefore, it would be impossible to bring any charges for treason.
The only provision in the Penal Code is Section 121, which provides for a person to be charged with waging war against the king or any of the rulers.
You must have a specific provision that criminalises an act, failing which, there can be no offence for those acts as enshrined under Article 7 of the constitution.
For instance, Thailand has lese-majeste laws that criminalise acts against the monarch, but we do not have such laws in Malaysia.
Additionally, Article 63(2) of the constitution states that no person shall be liable to any proceedings in any court in respect of anything said while Parliament is in session, and Article 63(5) of the constitution states that no person shall be liable to any proceedings in any court in respect of anything said by him of the Agong or a ruler when taking part in proceedings in Parliament.
Under Section 7 of the Houses of Parliament (Privileges and Powers) Act 1952, MPs enjoy immunity from civil and criminal proceedings for anything done or said in Parliament, and this includes any statements made verbally by MPs.
Should the prime minister resign?
Article 43(4) of the constitution makes it mandatory that if the prime minister ceases to command the majority of MPs, the prime minister shall resign.
Government chief whip and Deputy Prime Minister Datuk Seri Ismail Sabri Yaakob issued a statement asserting that the current administration still has the support of more than 110 MPs. The 222-seat Parliament has 220 living MPs. Ismail Sabri’s statement indicates that the government has more than half.
There are several ways to ascertain this: seating arrangements have shifted to show fewer MPs on the government side of the Dewan Rakyat; a vote of confidence; or, for the king to summon all MPs individually to obtain clarity on the accuracy or truth of the deputy prime minister’s statement. – The Vibes, July 30, 2021
Datuk Seri Rajan Navaratnam is a prominent senior lawyer who is also an independent counsel for The Vibes
The privy council, in the case of Teh Cheng Poh v PP 1978, held through the judgment of Lord Diplock that any revocation can be done only either by resolutions passed in Parliament or by the Agong himself, and if the king fails to do so, even the courts have no power to revoke them.
There is no stipulated time frame in the constitution for the king to act, and to date, there has been no confirmation of a royal assent. So, until that royal assent is given, or Parliament revokes them, the ordinances are still in force. A mere proposal to revoke is not tantamount to the ordinances having been revoked or annulled.
Can the law minister be investigated for treason or offences under the Penal Code?
There is no law in Malaysia that criminalises offences committed against the Agong. Without any existing legal provisions, it can be said that treason is not an offence in Malaysia, and therefore, it would be impossible to bring any charges for treason.
The only provision in the Penal Code is Section 121, which provides for a person to be charged with waging war against the king or any of the rulers.
You must have a specific provision that criminalises an act, failing which, there can be no offence for those acts as enshrined under Article 7 of the constitution.
For instance, Thailand has lese-majeste laws that criminalise acts against the monarch, but we do not have such laws in Malaysia.
Additionally, Article 63(2) of the constitution states that no person shall be liable to any proceedings in any court in respect of anything said while Parliament is in session, and Article 63(5) of the constitution states that no person shall be liable to any proceedings in any court in respect of anything said by him of the Agong or a ruler when taking part in proceedings in Parliament.
Under Section 7 of the Houses of Parliament (Privileges and Powers) Act 1952, MPs enjoy immunity from civil and criminal proceedings for anything done or said in Parliament, and this includes any statements made verbally by MPs.
Should the prime minister resign?
Article 43(4) of the constitution makes it mandatory that if the prime minister ceases to command the majority of MPs, the prime minister shall resign.
Alternatively, he may seek a dissolution of Parliament, but that is subjected to the king’s discretion. So, if His Majesty refuses, the prime minister must resign, and the Agong can then appoint another MP who, in His Majesty’s view, commands the confidence of a majority of MPs, without having to dissolve Parliament.
Government chief whip and Deputy Prime Minister Datuk Seri Ismail Sabri Yaakob issued a statement asserting that the current administration still has the support of more than 110 MPs. The 222-seat Parliament has 220 living MPs. Ismail Sabri’s statement indicates that the government has more than half.
There are several ways to ascertain this: seating arrangements have shifted to show fewer MPs on the government side of the Dewan Rakyat; a vote of confidence; or, for the king to summon all MPs individually to obtain clarity on the accuracy or truth of the deputy prime minister’s statement. – The Vibes, July 30, 2021
Datuk Seri Rajan Navaratnam is a prominent senior lawyer who is also an independent counsel for The Vibes
The same Agong had already refused to accept the advice of Mahiaddin (to declare emergency) once before. So there is already precedence that His Majesty can refuse Mahiaddin's advice again, to revoke the Emergency Ordinances.
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