Malaysia Dateline

Judges and not the Attorney-General decide on what is the law in Malaysia

Firstly, it must noted that under the Malaysian Constitution, the Attorney-General is the principal legal adviser of the government and not a judge who lays down the law of the land. This applies even when the Attorney-General was a former Federal Court judge.

As illustrated by the two previous Attorney-Generals under different administrations, one Attorney-General can disagree with another Attorney-General and there is nothing sacrosanct or final about the views of the Attorney-General on what is the law in the land.

As one leading lawyer, who has disputed the Attorney-General’s interpretation of the Constitution yesterday, pointed out, there is Article 130 in the Constitution where the government can refer to the Federal Court for its opinion any question as to the effect of any provision of the Constitution which the Attorney-General has not availed the government.

Secondly, it is pertinent that the Attorney-General Idris Harun was referring to the convening of Parliament and not to the extension of the emergency beyond August 1, 2021.

There is no serious suggestion that the Yang di Pertuan Agong unilaterally convene Parliament although there is serious suggestion that the Yang di Pertuan Agong, under the present circumstances, need not act on advice of the Cabinet or a designated Minister if he is asked to extend emergency beyond August 1, 2021 because of nagging questions about legitimacy and whether the Prime Minister commands the confidence of the majority of elected Members of Parliament.

In such circumstances, I would agree with one of the nation’s leading constitutional law experts, Tunku Abdul Rahman chair and constitutional law professor Shad Saleem Faruqi, that the Yang di-Pertuan Agong acts on the advice of the prime minister, so long as the office bearer has the support and confidence of the Dewan Rakyat.

In an online lecture titled “Understanding the Malaysian Constitution”, he said this is due to Article 43(4) of the Federal Constitution which says:

“If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.”

He said that while the King largely acts upon the advice of the prime minister, the definition of “prime minister” must be examined.

He said: “Does it mean any person holding the office, or does it mean a person who holds the office and who enjoys the support of the members of the Dewan Rakyat?

“While the Agong is bound by the advice of the ‘prime minister’, the word means a prime minister with a solid base, legitimacy and support in the Dewan Rakyat under Article 43(4) of the Constitution”.

The country’s founding fathers were honourable leaders who never envisaged that there would be a Prime Minister who would resort to the subterfuge of avoiding a “confidence motion” in Parliament and tried to evade the test in Article 43(4) of the Constitution.

I agree with Professor Shad Saleem that in such an event, there is a need to interpret Articles 40(1) and 43(4) in a new light.

Furthermore, the Prime Minister had given an implicit undertaking not to invoke Article 40 of the Constitution when enacting Emergency (Essential Powers) Ordinance 2021 on January 11, 2021 and establishing an independent special committee “to advise the Yang di Pertuan Agong on the continuing existence of the grave emergency threatening the security, economic life and public order of the Federation arising from the epidemic of an infection disease, namely Coronavirus Disease 2019 (COVID-19)”.

As a result, the Yang di Pertuan Agong need not have to act on the advice of the Cabinet or a designated Minister under Article 40(1).

Did the Attorney-General Idris Harun advise the Prime Minister to enact such a provision in the Essential (Essential Powers) Ordinance 2021 on the
Special Independent Emergency Committee and what is the constitutional effect of such a provision?

To avoid a full-blown constitutional crisis, I had suggested that the Prime Minister should convene Parliament before August 1, 2021.

With regard to the 28-day notice normally required for the convening of Parliament, it has been pointed out that this can be dispensed with under Standing Orders 9(2)(a) and 11(2).

I can still remember the urgent Parliamentary meeting in January 1979 when MPs were given two days’ notice as a result of the Privy Council decision in London on Teh Cheng Poh case

In July 2014, MPs were given three days’ notice to convene a special meeting of the Dewan Rakyat for one day on the tragic downing of Malaysia Airlines flight MH17.

Both the Teh Cheng Poh Privy Council decision and the tragic downing of MH17 airliner are no comparison to the magnitude and enormity of the Covid-19 pandemic, which has caused more Covid-19 cases and fatalities than China, which had 44 times’ Malaysia’s population, and the devastation of the Malaysian economy and society in the past 18 months with no end in sight.

At the present rate of Covid-19 infection and fatalities, by August 1, we will be knocking on the door to join the “millionaire club of nations” now comprising 28 nations with a cumulative total of more than a million Covid-19 cases and with a toll exceeding 6,000 deaths.

It could be that Muhyiddin Yassin has decided not to extend the emergency beyond August 1 and then to convene Parliament, instead of doing so before August 1.

If Muhyiddin is content with such pyrhhic victory, so be it. But he would pay a heavy price in forfeiting whatever little credibility and legitimacy left of his government in this process of incurring the displeasure of the Yang di Pertuan Agong and the Rulers, and even more important, the wrath of the people of Malaysia.

Malaysia needs a “Win the War Against Covid-19 Pandemic” (WACOP) coalition government to save the country from the devastation in lives, economic losses and societal damages of the pandemic.

Yesterday, a medical expert warned of “an impending, massive fifth wave” in Malaysia which “may be so big as to make the current one look pale in contrast”.

Let us subordinate all our political differences to this existential threat posed by Covid-19 pandemic. This is why I proposed on 17th June for a one or two-year political moratorium to win the war against the Covid-19 pandemic.

I believe that the Prime Minister, Muhyiddin Yassin should overcome his “Parliamentitis” – his fear and obsession about not convening Parliament – and convene Parliament before August 1 which is the clear wish of the Yang di Pertuan Agong and to fulfil the wishes of the Conference of Rulers special meeting on June 16 and not to extend the Emergency on August 1.

Both the two conclusions of the Conference of Rulers special meeting on June 16 – that Parliament and the State Assemblies meet “as soon as possible” and no need for any extension of the emergency beyond August 1 – are fully in line with the wishes of people of Malaysia for Malaysians want an administration which can reverse the tides of defeat to win the war against Covid-19 pandemic after a dismal performance especially after the proclamation of emergency to combat the Covid-19 pandemic on January 11, 2021.

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Media Statement by DAP MP for Iskandar Puteri in Kuala Lumpur on Saturday, June 26, 2021.