JUNE 12 — To be honest, Jason Loh’s “Whither the National Operations Council (NOC)?” wasn’t an easy read.
Needless to say, the shortcomings are mine. But this much is clear from Jason: the Yang Di-Pertuan Agong (YDPA) is a constitutional monarch. He acts on advice [Article 40(1) of the Federal Constitution].
Since the YDPA’s proclamation of emergency is in the exercise of His Majesty’s function under Article 150(1) of the Federal Constitution, he must therefore act “in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet.”
In the case of Teh Cheng Poh v Public Prosecutor , Lord Diplock in the Privy Council — then the country’s apex court — affirmed the position that in all matters where the YDPA must be satisfied, it is in reality the satisfaction of the Cabinet. His Lordship said:
“[W]hen one finds in the Constitution itself or in a Federal law powers conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affair exists or that particular action is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the Cabinet, or the opinion or satisfaction of a particular Minister to whom the Cabinet have delegated their authority to give advice upon the matter in question.”
And in all practicalities, it is the satisfaction of the prime minister.
Similarly, since the YDPA’s promulgation of emergency ordinances is made under the Federal Constitution — currently Article 150(2B) — His Majesty must act on advice.
Now, let’s get it straight on the 1969 Emergency. The Emergency was proclaimed by the YDPA on May 15, 1969 vide PU (A) 145/69. The proclamation was explained by the late Tunku Abdul Rahman:
“(I)t was necessary for me to advise His Majesty to proclaim a State of Emergency throughout the country as there was -no other way of dealing effectively with the current situation.” [See Tunku Abdul Rahman, May 13: Before & After (1969) cited by Cyrus Das in his doctoral thesis “Emergency Powers and Parliamentary Government in Malaysia: Constitutionalism in a New Democracy (1994)]
The proclamation was followed by the promulgation of the Emergency (Essential Powers) Ordinance No. 1 of 1969 on the same day. It was this ordinance that conferred the power to govern by emergency regulations upon the executive or government. This ordinance, however, did not establish the National Operation Council (NOC) or Majlis Gerakan Negara (Mageran).
It was the Emergency (Essential Powers) Ordinance No. 2 of 1969 — promulgated the next day — that established Mageran. Das explained:
“By another law made the next day, called the Emergency (Essential Powers) ordinance No. 2 of 1969, there was appointed a special officer-called the Director of Operations, who was to be assisted by a newly created special body, called the National Operations Council to administer the State of Emergency. Section 2(1) of the said ordinance declared that the executive authority of the Federation was to be delegated by the Yang di-Pertuan Agong to the Director of Operations who was nevertheless to act in accordance with the advice of the Prime Minister. These newly created appointments and bodies were a special feature of the 1969 Emergency.”
The person appointed as Director of Operations was the then Deputy Prime Minister, the late Abdul Razak.
Das has an interesting account of the 1969 Emergency: the decision to declare the State of Emergency “was taken by the then Prime Minister Tunku Abdul Rahman personally. The riots had broken out even before the Tunku could constitute his new Cabinet...But it would appear that he had at least the concurrence of the then Deputy Prime Minister, Tun Abdul Razak.”
Now, if it was the Tunku who had decided on the state of emergency, it was Razak who presented the emergency ordinances to the YDPA for His Majesty’s consideration and approval.
Perhaps one may have been inspired that other than a prime minister, someone else may present to the YDPA for the establishment of a Mageran-like body, if not a Mageran 2.0. But, as stated above, the YDPA must act on advice, which is the advice of or of a minister acting under the general authority of the Cabinet.
As Das suggested, Razak had the concurrence of the caretaker prime minister, i.e. the Tunku.
Perhaps little is known that a Mageran-like solution was also proposed before the 1977 Kelantan Emergency which was confined to Kelantan and brought about by political squabbles in the State, like the 1966 Sarawak Emergency. Before the proclamation, the then prime minister, the late Hussein Onn had tasked his deputy, Dr Mahathir Mohamad to find a solution to the political squabbles.
A “Mageran-style government” in Kelantan was the proposed solution. The then opposition leader, Lim Kit Siang, had called it “the Mahathir’s formula” in the parliamentary debates on the Emergency (Kelantan) Bill 1977 (November 8, 1977). According to Das, it was “the rejection of this formula in discussions with the Prime Minister on 7 November that led to the declaration of an emergency the next day.”
So, it is history repeating itself, as Mahathir himself revealed that he proposed the setting up of a Mageran-style government — Mageran 2.0 if you like.
It must be Mahathir’s formula 2.0. But as rightly responded to by the YDPA, in order to set up the Mageran the proposal must come from the government.
Simply put, the government advises the YDPA. His Majesty acts in accordance with the advice.
It may be Mahathir’s formula 2.0, but it must come from the government.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.