AUGUEST 3 ― 1. I feel compelled to pen my views in respect of lawyer Rosli Dahlan’s opinion which appeared in Malay Mail titled “Constitutional Crisis? Much Ado About Nothing”.
2. The two main points which Rosli made, which have also been Perikatan Nasional’s (PN) narrative, are as follows. First, that the power to revoke the Emergency Ordinances vests in the Cabinet, and the YDPA is bound to accede to the advice of the government. Second, that Takiyuddin did not mislead Parliament and merely conveyed the fact that the government had decided to revoke the Emergency Ordinances.
3. On the first point, Rosli and others are right to rely on Article 40(1A) of the Constitution to say that the YDPA is generally bound to follow the advice of the Cabinet, including the revocation of Emergency Ordinances.
4. But the first rule in constitutional interpretation is that one cannot read provisions, including Article 40(1A), in isolation ― it must be read with the Constitution as a whole.
5. This is where Article 40(1) comes into the picture: “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.”
6. Article 40(1) entrenches the YDPA’s constitutional entitlement to be provided with information from the government before acting on its advice. Inevitably, time is required for the government to gather and convey information, and thereafter for the YDPA to clarify, prod and process such information. Particularly in matters of great national implication. Thus, Article 40(1) in effect grants the YDPA the power to delay the exercise of his functions (even if he has been advised by the government to do an act) for the purposes of seeking further information.
7. In 1867, Bagehot famously described the British monarchy’s rights as follows: “To state the matter shortly, the sovereign has, under a constitutional monarchy such as ours, three rights ― the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others”.
8. Professor Anne Twomey in her seminal book on the powers of heads of state, The Veiled Sceptre, wrote: “The head of state is usually not a ‘rubber stamp’ and may seek to exercise his or her rights in order to persuade the government to change its actions…the rights to be consulted, to encourage and to warn have been taken to apply not just in the UK, Canada, New Zealand and Australia, but also in republics such as India, Singapore and Trinidad and Tobago…”
9. Back home, constitutional expert Professor Shad Saleem Faruqi evinced similar views: “His Majesty is entitled to seek further information, advice, caution, warn and delay.”
10. Thus, by constitutional convention and law, as well as the dignity of his office, the YDPA not only has the power to delay, but to caution and even persuade the Government to reconsider its advice. Of course, when push comes to shove, and if the government insists on a course of action, the YDPA is bound to act on such advice.
11. But the point remains: the YDPA is entitled to exercise the entire spectrum of powers described above (to seek information, caution and delay) BEFORE the YDPA exercises his functions. It is unlawful and disrespectful for the government to deprive His Majesty of this entire process.
12. And this is what the PN government and Takiyuddin have done. Therefore, with the greatest of respect, Rosli and others have missed the point altogether. No one is denying the YDPA has to act on advice, but the crux of the constitutional clash is that the YDPA has been robbed of his entitlement to seek information, caution and delay.
13. The PM’s statement today dated August 3 that the Ordinances have not been revoked, and would instead be tabled in Parliament in September pursuant to Article 150(3), illustrates this point well. Notwithstanding its earlier four-page PDF grandstanding, it would appear the PM and government has now conceded to the monarch’s wishes.
14. The second point which Rosli made was that Takiyuddin did not mislead Parliament.
15. I disagree, and I think Takiyuddin’s words as phrased in the Hansard is self-explanatory: “Kerajaan telah buat keputusan berdasarkan kepada Perkara 150(3) untuk membatalkan semua Ordinan Darurat yang telah dibuat semasa Proklamasi Darurat ini. Oleh sebab telah di revoke, maka isu ungkai ataupun annulment sudah tidak lagi relevan...[Dewan riuh]. Terima kasih.”
16. Whilst Cabinet has made a decision to revoke the Emergency Ordinances, it is clear now that the YDPA has not acted on such an advice. And for all intents and purposes, until the YDPA grants his assent and it is gazetted, such revocation has no force of law whatsoever. We are, after all, a nation governed by the rule of law where the commencement or revocation of a statute (or ordinance) has legal weight only upon gazettement ― and not upon decisions made behind closed doors in Putrajaya unbeknownst to the public.
17. The PM’s statement today dated August 3 also erases all doubts that the Ordinances have indeed not been revoked, and will be tabled in the September parliamentary sitting for a vote.
18. Therefore, Takiyuddin was wrong to have said the Ordinances “telah di revoke” and to even say there was no need for Parliament to vote to annul it. He essentially represented to Parliament that the YDPA had assented to the revocation and this had been gazetted, when that is clearly not the case. One can’t fault the YDPA then to have called out Takiyuddin for misleading Parliament.
19. One can even argue Takiyuddin knew full well that the YDPA’s consent was required before the revocation came into effect. If he knew that such consent was unnecessary for it to have force, he would have answered Anwar Ibrahim’s query on whether the YDPA has consented to it immediately. Instead, he went to great pains to evade the question and got off by a technical ruling by the Speaker.
20. As a lawyer, I am well aware that a constitutional monarch’s powers should be circumscribed within its limits ― we are, after all, living in a democracy run by elected officials. But they are not rubber stamps either, and do have a role in providing minimal checks, more so upon a belligerent Executive.
* Lim Wei Jiet is an Advocate and Solicitor of the High Court of Malaya.
** This is the personal opinion of the writer or organisation and does not necessarily represent the views of Malay Mail.
