THE Yang di-Pertuan Agong does not need to follow the advice of the prime minister and the cabinet on the revocation of emergency ordinances, constitutional lawyers said.

They said when the cabinet asked for emergency to be declared, they had gone to the Agong, therefore in revoking the ordinances, the power is vested in the king to revoke them.

“The Prime Minister’s Office (PMO) is wrong and they themselves know the king is not bound by their decision,” lawyer Haniff Khatri Abdulla said.

“On October 23, the government went and asked that an emergency be declared and the Agong had rejected it. He did not follow the advice of the prime minister and his cabinet then.

“If the PMO believed that the Agong could not decide on his own then, why did they not announce they had decided to declare emergency (without the king’s consent), like they did with the revocation.

“This was 10 months ago and it is still the same government, same prime minister and same cabinet who advised the king to declare emergency but was rejected.

“They never made an issue then, so how can they be correct this time?”

Haniff was commenting on the current issue between the palace and government on the revocation of emergency ordinances without the consent of the king.

On Monday, de facto law minister Takiyuddin Hassan announced that the ordinances had been revoked by the government effective July 21. He said the decision was made in accordance with Article 150(3) of the federal constitution.

His announcement raised consternation among MPs, with many questioning whether the decision had the king’s consent. Takiyuddin deflected questions, saying he would answer them on Monday, August 2.

A statement by the palace however, confirmed the king was not consulted on the revocation of the ordinances.

The king also said the government’s actions were disrespectful of the principles of rules of law, and paid no heed to the constitutional powers and functions of the Agong.

The statement from the palace added that Takiyuddin and Attorney-General Idrus Harun, during a virtual meeting on July 24, had indicated that the revocation would be made only after it was tabled and debated.

The PMO then subsequently replied that the government had acted in accordance with the legal provisions and federal constitution in revoking the emergency ordinances on July 21.

The PMO also said that Article 40 of the federal constitution stipulates that the Agong must heed the advice of the cabinet, alleging that the king had acknowledged it in the palace statement.

Andrew Khoo, who is Malaysian Bar’s constitutional law committee chairman, agreed with Haniff that in accepting the king’s decision in October not to declare an emergency, it had set a precedent.

“We should note that when the prime minister wanted the king to proclaim an emergency, in October 2020 and January 2021, he personally went to seek an audience with the king.  

“But for the revocation, reading the PMO’s statement, the prime minister only sent the king a letter. There appears to have been no prior consultation and certainly no consent.

“While the constitution clearly sets out that the king acts on the advice of the cabinet, the cabinet itself set a precedent when, in October 2020, even after advising the king to proclaim an emergency, the king chose not to, and the cabinet accepted that,” Khoo told The Malaysian Insight.

Haniff said the king cannot be automatically compelled to follow the executive’s decision.

“The PMO is saying as far as they are concerned, they make the decisions and the king has to follow.

“If you look at Article 40(1)(A), it says the king ‘acts in accordance with advice, on advice, or after considering advice, the king shall accept and act in accordance with such advice’.

“It doesn’t say that he must act or is compelled to act on the advice of the prime minister and the cabinet.

“Meanwhile Article 40(2) provides that whatever the king can do on his own, then there cannot be interference from the prime minister.”

Article 40(2) provides that the king may act in his discretion in the performance of the following functions, that is to say: (a) the appointment of a prime minister; (b) the withholding of consent to a request for the dissolution of Parliament; (c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting, and in any other case mentioned in this constitution.

“Not in every case, the king is compelled to listen to advice. Only when the provision requires it. It was wrong of the PMO to prematurely say that the king assented to the revocation. They jumped the gun.”

Haniff added that looking closely at Article 150(1) of the constitution with regard to the proclamation of the emergency, the decision to declare it is solely vested on the king, when he is “satisfied” that there is a need for it.

“Satisfaction is a subjective test, an individual thought process of the king. Whether the prime minister advises or not, he is not compelled.

“There is no mention that there must be advice from the prime minister. This is an example in which the king can decide on his own and the executive cannot tie his hands.

“When the king gave the proclamation of emergency, he decided on his own. The person who made the order must be the person who has the power to revoke.”

Article 150(1) provides that if the 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.

Lawyer Lim Wei Jiet added that the king does not blindly follow the cabinet’s advice at all times.

“His Majesty is entitled to caution, warn, delay or request the cabinet to reconsider.

“Clearly, from the palace’s statement yesterday, the king was of the view that the ordinances should be tabled in Parliament to be decided and not upon His Majesty’s revocation,” Lim added. – July 31, 2021.