Reconciling Istana’s Statement on 25.10.2020 with Article 40(1) of the Federal Constitution — Does the Agong Have a Duty to Follow the Advice of PM?
By way of background, Yang Di-Pertuan Agong (Agong) is granted a power under Article 150(1) of the Federal Constitution to proclaim a state of emergency. The article reads as follows:
“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.”
In the famous case of Stephen Kalong Ningkan v Govt of Malaysia, the court held that Agong’s power to proclaim under Article 150(1) is a constitutional prerogative. Whether Agong is satisfied that a grave threat exists within the meaning of Article 150(1) is a subjective political question and may not be up to challenge in a court of law. Clause 8 was later inserted into Article 150 by way of a constitutional amendment to expressly oust High Court’s jurisdiction to review the validity of all emergency proclamations and emergency ordinances passed pursuant to Article 150(1) and Article 150(2B) respectively.
This decision has been usually read together with a group of cases such as Madhavan Nair v Govt of Malaysia and Teh Cheng Poh v PP. In the first case, it was pointed out by the court that in a state of emergency, Agong remains a constitutional monarch who acts upon the advice of Cabinet. Similarly, in Teh Cheng Poh, the Privy Council opined that all acts by Agong in fulfilment of his constitutional obligations are upon the advice of PM. Both of these cases interpret the emergency powers under Article 150 together with Article 40(1), which reads a s follows:
“In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.”
While there has been scholarly support for the idea that Agong enjoys sole discretion to proclaim an emergency under Article 150(1), the mainstream view in Malaysian constitutional law is that Agong, as a constitutional monarch, may only act upon the advice of PM, and this duty qualifies Agong’s emergency powers under Article 150.
Yesterday’s statement by Istana has therefore created a constitutional conundrum. If we are to accept that Agong is a constitutional monarch who acts on advice of PM/Cabinet, how do we make sense of Agong’s apparent rejection of PM’s advice (or is it merely a request? See next paragraph) to call for an emergency? The statement by Istana does not sit well with conventional understanding of Article 40(1) of the Federal Constitution.
One way to reconcile this inconsistency is by looking at PM’s proposal for an emergency simply as a request, not an advice within the meaning of Article 40(1). This may be seen as employing semantics to explain the unexplainable. Furthermore, it creates another constitutional issue: what is an advice and what is a mere proposal or request? It would create a practical and legal nightmare where every communication by PM to Agong must be clearly categorised as either advice or proposal or request or simply friendly small talk between old friends.
There is however, another way of explaining away the inconsistency and reconciling Agong’s statement yesterday with the mainstream constitutional position that Agong must act on PM’s advice. If Agong chooses to exercise his power to proclaim emergency under Article 150(1), he may only do so upon PM’s advice. However, PM’s advice alone may not be sufficient to satisfy Agong that a grave threat exists, and neither can PM compel Agong to act on his advice. PM’s advice is therefore a necessary ingredient in Agong’s proclamation of emergency, but is it the only ingredient?
I argue that it is NOT. PM’s advice is by no means the only ingredient in the satisfaction of Agong within the meaning of Article 150(1). Should Agong proclaim an emergency, such proclamation may only be constitutionally done after PM has advised him that such a proclamation is required. However, nowhere is it stated in the Federal Constitution that PM’s advice on its own is the sole condition to satisfy Agong in the active exercise of his power to proclaim.
In this particular instance, the Agong does not ACTIVELY exercise his 150(1) power to proclaim; he did not proclaim an emergency. Agong merely PASSIVELY exercises the power by NOT proclaiming an emergency. I submit that PM’s advice is not binding on Agong, in the sense that the advice alone cannot necessitate an ACTIVE exercise of Agong’s power to proclaim under Article 150(1). However, if Agong chooses to exercise his power ACTIVELY by proclaiming emergency, such active exercise of power must be predicated on PM’s advice.
It is therefore necessary to distinguish what transpired yesterday from previous cases where emergency was actually proclaimed. Article 150(1), as read together with Article 40(1) provides for a power to the Agong to proclaim emergency upon advice of PM. However, the two articles do not place Agong under a constitutional duty to be automatically satisfied that a grave threat exists simply because PM has advised him so. PM’s advice is therefore a necessary condition to Agong’s proclamation of emergency, but it may not be enough to satisfy Agong within the meaning of Article 150(1).
TLDR: While all acts of Agong must always be upon PM’s advice, it does not necessarily follow that all PM’s advice triggers a duty for Agong to actively exercise his power to proclaim under Article 150(1). A necessary condition may not be the only condition in meeting the Article 150(1) requirements.
Note: I am an LLM student at the University of Malaya and would welcome views from anyone interested in constructive discussions.
Rashidah (26.10.2020)
