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KUALA LUMPUR, May 15 — The Team of Eminent Persons advising the Pakatan Harapan (PH) government is not unconstitutional or illegal as its advice is non-binding upon the Cabinet, according to legal interpretations.
Lawyers told Malay Mail that the ministers were also not obliged to act on the team’s counsel, further explaining that it will be Cabinet ministers who report and answer to Parliament.
Lim Wei Jiet, co-deputy chair of the Bar Council’s constitutional law committee, said that while the Federal Constitution and laws do not provide for the establishment of an advisory body, there was nothing to prevent its creation or function.
“It is practically the same as engaging a group of consultants, a practice not alien to the Najib administration,” he told Malay Mail when contacted yesterday, referring to the previous federal government under former Barisan Nasional chairman Datuk Seri Najib Razak.
Lim said the Team’s advice and recommendations will not have legal powers and repeated that the Cabinet is under no obligation to act on such advice.
The team comprising former senior government officials and business leaders were limited to providing guidance for the consideration of the Cabinet in its decision making, he said.
“Hence, when push comes to shove, the Cabinet will make the final decision and take full responsibility of the same,” he said.
Lim also said the concept of collective responsibility among Cabinet members will not extend to and bind the Team of Eminent Persons, adding: “The [Team] will not be answerable to Parliament — it is the Cabinet ministers which have to be answerable ultimately.”
Surendra Ananth, co-chair of the Bar Council constitutional law committee, noted that the Federal Constitution does not expressly provide for or prohibits such a body.
“Does this necessarily render them unconstitutional? I do not think so,” he told Malay Mail when contacted.
Noting that the Federal Constitution says that the executive authority is vested in the Yang di-Pertuan Agong and exercisable by him or the Cabinet, which is collectively responsible to Parliament, Surendra said that all that the Constitution requires is for the final decision come from the Cabinet.
Surendra said that as long as the Team of Eminent Persons does not exceed an advisory role and the ministers do not abdicate their responsibility to make the decisions, then the arrangement is “not unconstitutional”.
“In fulfilling their constitutional role, the Cabinet cannot be a rubber-stamp to decisions of the Team. The Team can advise, but the Cabinet must form their own view. This means that the Cabinet is entitled to depart from the advice of the Team.
“What is important is that if Cabinet chooses to follow the advice of the Team, it is the Cabinet that must be answerable and accountable to Parliament. It is after all their decision,” he said.
“In essence, the Team as established does not exercise any executive authority, it merely advises how such authority should be exercised. It is up to Cabinet on whether to follow such advice,” he added.
When contacted, legal expert Gurdial Singh Nijar said the executive branch of the federal government is “entitled to set up such a body”.
He similarly noted that the team’s role was advisory and non-binding.
The lawyer also told Malay Mail that the decision of the Cabinet or a minister would override the recommendations.
“They provide their advice to the appointing authority only. They are governed by the document which would set out the ambit of its work. It is not answerable to anyone else,” he said when asked if the Team would have to answer to Parliament, referring to the prime minister with the consent of the interim Cabinet as the appointing authority.
Lawyer Andrew Khoo, who co-chairs the Bar Council’s Human Rights committee, said the Team of Eminent Persons is purely an advisory committee.
“Decisions of the Cabinet would still override those of the Team,” Khoo said.
Christopher Leong, the former Malaysian Bar president, noted that the Team of Eminent Persons was reportedly formed to assist the government by looking into specific matters and providing advice and recommendation to the government, which he said would not be illegal.
“The government or the PM has the prerogative to consult, appoint or engage anyone, organisation or body of persons for assistance and advice; or to set up a task force. The members of such a Team need not be elected.
“In fact, such a [Team] which is tasked to focus on specific matters and provide recommendations would be useful and of assistance to the government,” he told Malay Mail when contacted.
“Since the role of the [Team] is advisory in nature, their recommendations would not have legal force in the sense that it is not legally binding on the government,” he said.
Apart from not being binding on the government, the Team’s advice will also “not be binding on the Cabinet, although good and sound advice and recommendations will be persuasive,” he said.
Leong said the Team of Eminent Persons appeared to differ from a Commission of Inquiry, as the former lacks apparent powers to compel any person, body or agency to provide cooperation or information or produce document or appear for discussion or questioning.
While it would always be good if the Team of Eminent Persons can achieve a consensus on any of its advice and recommendations, this is “not a strict requirement”, he said when asked if they would need to practise collective responsibility.
“Since the [Team] is established as an ad hoc body to assist and advise the government and not established pursuant to the Federal Constitution or any legislation, it would not per se be answerable to Parliament,” Leong said.
On May 12, the newly sworn-in Prime Minister Tun Dr Mahathir Mohamad announced a Team of Eminent Persons as an advisory body to the PH government, comprising former finance minister Tun Daim Zainuddin, former Bank Negara governor Tan Sri Zeti Akhtar Aziz, former Petronas president and chief executive Tan Sri Mohd Hassan Marican, economist Jomo Kwame Sundaram and business tycoon Tan Sri Robert Kuok.
During his previous 22-year rule as prime minister from 1998 up until 2003, Dr Mahathir had also created the National Economic Action Council that he chaired and in which Daim was the executive director to help steer Malaysia through the 1997/1998 Asian financial crisis.
In academic papers, the NEAC formed in January 1998 was stated as consisting of 26 members including ministers, the Central Bank Governor, the Chief Secretary to the Government, and those from the banking and finance industry, trade unions and consumer associations.