Now that the Prime Minister has given a nonchalant reply to the earnest pronouncements by both the Agong and the Conference of Rulers respectively that Parliament should be reconvened urgently to overcome the current political, economic and pandemic crisis, the focus is now on the following issue:
“Who has the power to convene Parliament: The Agong or the Prime Minister?”
The ultimate decision maker on this issue would have been the Prime Minister if this is ordinary time. But under the current Proclamation of Emergency, that power has been shifted to the Agong.
And this is done through the Emergency (Essential Powers) Ordinance 2021: Section 14(1) (relating to Parliament), which, when read in conjunction with Section 15(1) (relating to the State Legislative Assembly), leads to the irresistible conclusion that this shift of power is deliberate.
Not only such power relating to Parliament has been shifted, but also that relating to the State Legislative Assembly as well.
Under Section 15(1), the power to convene the State Legislative Assembly, hitherto under the State government, is now moved to the Agong, except that unlike in the case of Parliament where the Agong can make unilateral decision (without consulting the Prime Minister), he has to consult the respective Ruler or the Yang di-Pertua Negri before making the decision.
I quote Section 14 (1) in full :
- (1) For so long as the emergency is in force –
(a) The provisions relating to the summoning, proroguing and dissolving of Parliament in the Federal Constitution will not have effect; and
(b) The Parliament shall be summoned, prorogued and dissolved on a date as the Yang di-Pertuan Agong thinks appropriate.
Conventional constitutionalists may argue that under Article 14(1) of the Federal Constitution, the Agong is obligated to act in accordance with advice of the Executive, and so even if the Prime Minister is not mentioned, the Agong still has to act under the former’s advice.
But the truth is that the Emergency Ordinances override the Federal Constitution wherever there is inconsistency between the two, as provided under Article 150(6B), which, I quote:
“ ……no provision of any ordinance promulgated under this Article ……..shall be invalidated on the ground of inconsistency with any provision of this Constitution.”
The picture is now clear: The Agong can convene Parliament without advice from the Prime Minister, and he can also convene the State Legislative Assembly after consulting the respective Heads of State.
The ball is now at the Agong’s feet. Will he now restore both Parliament and the State Assemblies to revive our parliamentary democracy, cold-stored since January?