KUALA LUMPUR, Nov 18 — The courts should reject any requests to file suits challenging the Yang di-Pertuan Agong’s emergency declaration powers, Umno’s Padang Rengas MP Datuk Seri Mohamed Nazri Abdul Aziz said.
Referring to the Federal Constitution, under Article 158, Nazri said in the event that the Agong’s satisfaction — as mentioned in Clauses 1 and 2(B) — is final and conclusive, it cannot be challenged in any court for any reason.
“So the courts should straightaway reject any request challenging the Agong’s satisfaction.
“(Courts) should reject from the get-go rather than stay silent, as it will create uncertainty because people will be kept wondering, since there isn’t any finality in the matter,” he said during his debate on the Budget 2021 Bill in Parliament today.
He however noted that although some lawyers said it must be read with Article 40(1A) which refers to the need for the Agong to accept and act on advice when carrying out his functions under the Constitution or federal laws, Nazri said this article is a general one, while Article 150 is specific when it mentions the Agong must be satisfied.
“So it’s inconsistent if we say he doesn’t have a right and must follow advice because the word ‘satisfied’ was specifically for the Agong.
“He has feelings. He has the ability to ask the public whether it is proper or not.
“This is why I will continue to say that the Agong has discretionary powers,” Nazri said.
The former law minister’s call for support comes after discussions on the topic sparked a heated debate among MPs in the Dewan Rakyat.
He also explained why a state of emergency is not required at present as Malaysia is not the only country in the world affected by the Covid-19 pandemic.
“We don’t need an emergency because firstly, Malaysia is not the only country going through Covid-19. All countries are facing this.
“Yes, Spain declared an emergency but that’s because they have up to 10,000 cases a day, compared to us, with over a thousand a day only, even that’s because it was due to late testing.
“In Spain, at one point, there were 30,000 cases a day and there were also a lot of deaths, so that’s why they declared an emergency,” he said.
He added that some developing countries have not declared an emergency despite their reputation as dictatorships.
“So don’t make the situation worse by dragging the Agong to court to question a decision based on his satisfaction, when it is his right to reject an emergency request,” said Nazri.
Previously, law experts explained that the issue mainly involves the Federal Constitution’s Article 150(1) which touches on the proclamation or declaration of emergency and Article 40(1) which revolves around the Agong acting on advice.
Article 150(1) states: “If the Yang di-Pertuan 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.”
Article 40(1) states: “In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.”
Law experts also said that the way Article 150(1) is worded, this is arguably one of the instances where the Agong has discretion to not act on the Cabinet’s advice.