A constitution and its monarch

Malaysians are concerned and disconcerted over the unelected appointment of the ninth prime minister, the proclamation of an emergency, and the immediate remedies for jump-starting the grunts, groans and gasps of the national economy.

The only comfort and solace reposes in the theatre and drama of the Federal Constitution (FC) being that it is the supreme law of the land with one principal actor who has been granted unfettered power — His Majesty the Yang di Pertuan Agong.

The Agong’s constitutional power comes from an ancient convention that “The King must not be under man but under God and under the law, because the law makes the King, … nothing is more fitting for a sovereign than to live by the laws, nor is there any greater sovereignty than to govern according to law, and he ought properly to yield to the law what the law has bestowed upon him, for the law makes the King,” according to Henry de Bracton’s 13th century Treatise De legibus et Consuetudinibus Angliae.” 

This principle then developed into “The King can do no wrong” (rex non potest peccare) tenet which received parliamentary approval with the caveat that “be you never so high, the law is above you,” as cautioned by Thomas Fuller (1608-1661).

The Agong did not constitutionally suspend, dissolve or prorogue Parliament as required by Article 150(5) and Article 55 FC. That decision came from the questionable advice of the ninth prime minister when there was a spike in Covid-19 cases. The Agong is not constitutionally conferred with powers to make political decisions unless exigencies require his executive action.

The Dewan Rakyat’s Standing Orders are ordained and established under Article 62 FC, thus making it another prong of the supreme law of the land that needs no further deliberation, debate, discourse or discussion. MPs are bound by the Standing Orders when engaged in parliamentary debates and discussions.

Thus, the Standing Orders qualify as law of the land. Any parliamentary procedure is a law unto itself. Any law, therefore, may be subject to judicial review, interpretation and explanation under Article 4(4) and Article 128(1) and 128(2) FC.

The judiciary is barred from adjudicating the consequences of parliamentary proceedings per se but is granted the power to decide the manner in which any proceeding was conducted.

Article 4(4) and Article 128(1) and 128(2) FC find legitimacy in Bribery Commissioner v Ranasignhe [1965] AC 172, when Lord Pearce declared that “A legislature has no power to ignore the condition of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign,” at p. 197.

The Dewan Rakyat’s Standing Orders, as a rulebook for the condition of law-making, are thus not fodder for shouting matches in Parliament.

The Standing Orders are very clear as to the tabling of motions that are approved by the Speaker. Order 27(3) is the pivotal vote of no-confidence motion abled to remove a sitting prime minister who has the potential of losing the support of the majority in the Dewan Rakyat.

Constitutionally, Order 27(3) must be obeyed in tandem with Article 43(4) FC that outlines the procedures involved when the prime minister loses the confidence of the majority in Parliament as a result of illness, incapacitation, abdication or resignation for personal or political exigencies.

This is where it gets curiously interesting. When the sitting prime minister resigns, as did the eighth prime minister, allegedly following the Sheraton Move, that resignation is one of the scenarios for a sitting prime minister to lose the confidence of the majority in Parliament as he is constitutionally no longer eligible or entitled to receive the support of the majority by the very act of resigning.

Article 43(4) therefore is clear that two resignations by the sitting prime minister are not necessary because the (first) resignation is a resignation that creates a no-confidence of the majority scenario. Therefore, his request to the Agong not to dissolve Parliament is not quirky and questionable because his request to dissolve Parliament is only tenable when he resigns after a motion of no-confidence has been tabled in Parliament under Standing Order 27(3) guided by Article 62 FC and Article 43(4).

Such was not the case when the eighth prime minister resigned and the ninth prime minister received the blessings of the Agong to form a government when he proved he had the confidence of the majority of MPs when the Agong interviewed all 222 MPs. The point here is that no by-election or elections were held to endorse the ninth prime minister’s appointment whose advice became obviously moot for his own appointment – Article 43(2). The Agong took charge as is mandated under Article 39 FC (Executive authority of Federation).

The pipeline and grapevine are abuzz that if PKR, DAP, Amanah, Warisan and Umno form a coalition of more than 130 seats over Bersatu and its supporters which may have fewer than 70 seats, then this coalition’s qualification to form a government with the appointment of a new prime minister without the need for elections is strikingly relevant and evident.

Article 182 FC imposes constitutional restraints and constraints upon the Agong in his personal capacity which means anything done by His Majesty in an official capacity is not constitutionally prohibited. But what if His Majesty was wrongly advised or misguided? This is not seditious given the protection of Section 3(2)(c)(i) and (ii) of the Sedition Act 1948 when someone points out an error committed under the law due to misguided or bad advice with the intention of offering a remedy by necessary amendments to the written law.

The Malaysian Federal Constitution is the supreme law of the land, bar none. Any statute or promulgated law or ordinance must comport with the supreme law of the land. The power to appoint a prime minister can only arise when one MP can evidence that he commands the confidence of the majority of MPs in the Dewan Rakyat.

Once this confidence of the majority is ascertained and confirmed, then and only then does Article 43(2) FC become effective and efficient — that the Agong appoints other ministers upon the advice of the prime minister who gained the confidence of the majority of MPs in the Dewan Rakyat. Here, the advice of the prime minister must be constitutionally, not politically, correct.

This is a huge responsibility upon the Agong who obviously has his brother Rulers to advise him under the wide powers conferred by Article 38 FC. In essence, the Agong’s powers, under the FC, the supreme law of the land, is all-powerful, consummate, omniscient and unimpeded in his official capacity.

The supreme law of the land grants the power and authority to the Agong who is also Supreme Commander of the Malaysian Armed Forces pursuant to Article 41 FC, and His majesty is the only power in temporal Malaysia that can grant a pardon under Article 42 FC.

All said and done, our Agong has gone by the book and the very book is supreme as is His Majesty’s exercise of power and authority to lay down the law within its distinct contours. The Agong’s decision to advise the prime minister to convene Parliament without further delay is certainly motivated by a desire to convince the rakyat that Parliament is the proper venue to form a government once the emergency is lifted when in the Agong’s opinion a grave danger no longer persists as confirmed by Article 150(8).

The views expressed are those of the columnist and do not necessarily reflect the official policy or position of the New Sarawak Tribune.