IN August 2019, Britain’s ex-prime minister Boris Johnson advised the late Queen Elizabeth II to suspend parliament from a date between September 9 and 12 until October 14, 2019. On August 28, 2019 parliament was accordingly suspended.  

The decision to do so was challenged in two sets of proceedings, one in Scotland (the Cherry case) and one in England (the Miller case). On September 4, 2019 the Scottish Court of Session refused the petition in the Cherry case, on the grounds that the issue was not liable to trial in a court of law (i.e. not justiciable).

The English High Court also dismissed the claim in the Miller case on the grounds that the issue was not justiciable. It accepted the government’s submission that the courts should not enter the political arena but should respect the separation of powers. It held that the prime minister’s decision that parliament should be prorogued at the time and for the duration chosen, and his advice to Her Majesty to that effect, were inherently political in nature, and there were no legal standards against which to judge their legitimacy. 

Prorogation is a prerogative power exercised by the monarch – an absolute one – who acts on advice. The Agong in Malaysia, however, is a constitutional one. His Majesty’s powers are set out by the constitution. 

In the case of Tan Sri Musa bin Hj Aman & Ors v Tun Datuk Seri Hj Panglima Hj Juhar Hj Mahiruddin & Ors [2021], the Court of Appeal referred to the Federal Court case of Dato’ Sri Ir Hj Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General, intervener) [2010], which explains the application of the constitutional provisions on dissolution of legislative assemblies, and held that the decision whether or not to dissolve the legislative assembly is at the absolute discretion of the King, who does not act on the advice of the executive in the matter of dissolution of the assembly. 

Even though the Court of Appeal was of the view that provisions in the constitution could be argued, litigated and determined for its effect and applicability, at the end of the day, the dissolution of a legislative assembly “is a non-justiciable subject and consequently not amenable for judicial review.” It is a matter not suitable and appropriate for its review before the courts. 

It appears that even if the advice or request for the dissolution of a legislative assembly could be argued and litigated as being unlawful, the Agong can still exercise his discretion to dissolve the assembly. 

* Hafiz Hassan reads The Malaysian Insider.  

* 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.