Federal Court has advisory jurisdiction and is the ultimate advisor — Hafiz Hassan

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JULY 17 — Media reports which raised views that the Yang di-Pertuan Agong (the King) should accept his own legal advice through bodies such as the Privy Council is intriguing.

Following the reports, the Pakatan Harapan (PH) Presidential Council has pursued its call for Attorney General (AG) Tan Sri Idrus Harun’s service to be terminated with immediate effect or resign. According to the Council, the AG is no longer seen to be able to carry out his official duties professionally and neutral in enforcing the law.

Lest we forget, Article 130 of the Federal Constitution allows the King to refer to the Federal Court for its opinion on any question as to the effect of any provision of the Constitution which has arisen or appears to him likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it.

So, the Attorney-General (AG) may be in conflict of interest as the King’s as well as the prime minister’s legal advisor [Article 145(2)].

But the Federal Court has advisory jurisdiction on the legal effect of any provision of the Constitution. The Court’s opinion is what matters, ultimately. 

This is demonstrated in the United Kingdom (UK) Supreme Court case of R (on the application of Miller) v Prime Minister; Cherry and others v Advocate General for Scotland (2019). 

The case ensembled the best legal minds in the UK before 11 Lord Justices to hear arguments on the constitutionality of the prime minister’s advice to the Queen to prorogue Parliament.

File photo showing Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah (left) with Attorney General Tan Sri Idrus Harun at the Istana Negara March 12, 2020. — Picture via Instagram/Istana Negara
File photo showing Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah (left) with Attorney General Tan Sri Idrus Harun at the Istana Negara March 12, 2020. — Picture via Instagram/Istana Negara

The Supreme Court ultimately decided that the prime minister’s advice and the actual prorogation of Parliament to which the advice had led were unlawful, null and of no effect.

Experts who acknowledged that it is high time the King has his own legal advisers should perhaps consider how to facilitate the King’s invocation of the Federal Court’s referral jurisdiction.

As for the call for the AG’s service to be terminated, the Supreme Court case above also shows that the law is not black and white, as there are many grey areas. There are complex matters on which senior and distinguished lawyers will disagree.

If the AG acts in good faith and in the belief that his advice is both lawful and constitutional, then he should be entitled to his advice.

Ultimately, the courts are the final arbiter of contesting and opposing opinions. Under Article 130, the Federal Court is the ultimate advisor.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.

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