Between ‘Prerogative and Advice’

Yang di-Pertuan Agong Al-Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah

KUALA LUMPUR: Lately, Article 40 and Article 150 of the Federal Constitution became hot topics of debate after the Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah rejected the request of Prime Minister Tan Sri Muhyiddin Yassin to declare a state of emergency in the country.

Various justifications and comments were made by parties on the decision that there was no need to declare an emergency while some described the Agong’s decision as inconsistent with Article 40.  

The decision of Al-Sultan Abdullah which was welcomed by various quarters to protect the interest of the country and people, also led to a legal action by a lawyer who filed an originating suit on Oct 30, to seek an interpretation of the provisions of the Federal Constitution on the discretionary powers of the Yang di-Pertuan Agong in turning down a declaration of emergency as advised by the prime minister to combat the Covid-19 pandemic in the country.

Article 40 (1) clearly states that 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 the Constitution.

The question is in the proclamation of emergency under Article 150, should the Yang di-Pertuan Agong act on the advice of the prime minister?

According Federal Constitution expert Datuk Dr Wan Ahmad Fauzi Wan Hussain, contrary to popular belief that the power of the King is limited by the constitution as reflected by the term “Constitutional King”, one must refer to every relevant provision in the Federal Constitution to understand the power of the Yang di-Pertuan Agong.

On Article 150, he explained that for the Agong to issue an emergency proclamation, the Agong has to be satisfied that a grave emergency exists whereby the security or the economic life or public order is threatened.

He explained that “the Yang di-Pertuan Agong is satisfied” is the exception allowed in Article 40 (1) as the Cabinet or the minister cannot determine the Agong’s satisfaction with the existence of such a condition except His Majesty himself.

“In the proclamation of emergency, advice under Article 40 (1) is not used as the Cabinet or prime minister could only make the request to the Yang di-Pertuan Agong,” he said.

“Preservation of the prerogative in Article 150 is important because an emergency legitimises a situation as well as the course of the legal system beyond normal practice. Therefore, that power must be maintained in the prerogative of His Majesty,” said Wan Ahmad Fauzi, who holds a Doctor of Philosophy (Constitutional Law) from Universiti Kebangsaan Malaysia.

Apart from that, he said Article 150 (8) ensures that the decision of the Yang di-Pertuan Agong could not be challenged in any court, to protect His Majesty’s prerogatives so that he could carry out his responsibilities fairly.

Wan Ahmad Fauzi also held the view that Al-Sultan Abdullah had studied the prime minister’s proposal thoroughly by utilising all available channels, including holding a special meeting of the Malay Rulers.

Meanwhile, International Islamic University Malaysia law lecturer Prof Dr Nik Ahmad Kamal Nik Mahmod said the issue of interpretation of power and prerogative of the Yang di-Pertuan Agong had been discussed by the Federal Court before.

“If this case (emergency proclamation) is brought to court, then this issue will be discussed again and an end to this issue could be found. Another issue to look at is whether the lawyer who brought the case has the locus standi or not. If the court decides he has no standing then the court will reject his application,” he said.

In the current situation of the country, Nik Ahmad Kamal is of the view that His Majesty has performed his duties based on the Federal Constitution in the interest of the country and people.

“From the aspect of interpretation, whether it is in line with the meaning of the constitution or not, it is in the hands of the court. It needs to be seen from another aspect on His Majesty’s role, which is whether His Majesty’s decision is for the benefit of the overall public interest or not,” he said.

Research Fellow (Law and Constitution) Universiti Teknologi Malaysia (UTM) Dr Muhammad Fathi Yusof is of the view that ‘advice’ and prerogative are part of the dynamics of constitutional interpretation.

“The constitution can be changed through amendments in Parliament. In addition, the constitution also goes through changes in the process of interpretation. New studies, political realities, changes in the way people think and current situations affect how the constitution functions,” said the senior lecturer at the Perdana Centre of Science, Technology and Innovation Policy of UTM Razak Faculty of Technology and Informatics. — Bernama