WITH the greatest of respect, Iskandar Puteri’s Member of Parliament and DAP senior adviser Lim Kit Siang does not have to goad the prime minister into making a statement that it is the cabinet’s responsibility to advise the Yang Di-Pertuan Agong (the king) whether or not the emergency should be extended. 

Or whether it is the Special Independent Emergency Committee (SIEC) that is the only authoritative body to advise the King on the same matter.

As I have written, the law is clear that the SIEC, established under section 2(1) of the Emergency (Essential Powers) Ordinance 2021, is mandated to advise the king on extending or otherwise the state of emergency. The Ordinance, in turn, is constitutionally mandated to provide that the king act after consultation with or on the recommendation of any person or body of persons other than the cabinet [Article 40(3)]. 

Be that as it may, we may recall that the Agong had refused to accede to the prime minister’s request to declare a state of emergency nationwide in October last year. The king’s decision might seem to fly in the face of the “advice” or “opinion” of the Privy Council in Teh Cheng Poh v PP (1979) that the king’s functions “are those of a constitutional monarch and… he does not exercise any of his functions under the constitution on his own initiative but is required by Article 40(1) to act in accordance with the advice of the cabinet.”

“So when one finds in the constitution itself or in a federal law powers conferred upon the king that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affair exists or that particular action is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the cabinet, or the opinion or satisfaction of a particular minister to whom the cabinet have delegated their authority to give advice upon the matter in question.” 

We may also recall that former Dewan Rakyat speaker Mohamad Ariff Md Yusof has argued that “there is an element of discretion, a residual discretion to the general rule that in normal cases the monarch is expected to act in accordance with the advice of the executive. There is nothing in Article 40(1) or (1A) to obliterate this residual discretion.”

As such, the decision by the Agong to refuse the advice to proclaim an emergency has a “sound constitutional basis”.

So it may not matter who advises the king. His Majesty has a residual discretion.

Politics do not have to be toxic and continue to be so. Or be about persistent political disagreements.

Politics can be conciliatory, as promoted by Martin Ebeling (Conciliatory Democracy, Palgrave Macmillan 2017).

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.