The Agong S Emergency Declaration Powers A Look At Discretion Advice And History From A Legal Perspective

---

 
The Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah officiates the opening of the first meeting of the third session of the 14th Parliament in Kuala Lumpur May 18, 2020. — Bernama picKUALA LUMPUR, Oct 29 — The Yang di-Pertuan Agong’s decision last Sunday to reject the prime minister’s request to declare a state of emergency in Malaysia has cast the spotlight on the King’s role under a rarely-used provision in the Federal Constitution.
Even after the Agong’s decision not to declare an emergency, discussion on the topic continued with Dewan Negara Speaker Tan Sri Rais Yatim suggesting on Twitter on Monday that Article 40 and Article 40(1A) under the Federal Constitution had not been complied with. 
The Article 40(1A) that he had cited referred to the need for the Agong to accept and act on advice when carrying out his functions under the Constitution or federal laws.
But is there really a straightforward answer? Malay Mail spoke to several constitutional lawyers, who shared their views from a legal perspective on the interpretation of constitutional provisions, past decisions by the courts and even historical background.
The two main laws
This 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.”
Lawyer Nizam Bashir speaks to reporters at the Court of Appeal in Putrajaya June 25, 2019. — Picture by Miera Zulyana
Discretion to declare emergency
When contacted, lawyer Nizam Bashir pointed out that the Agong is to act in accordance with advice as provided for under Article 40, but at the same time noted that the Agong need not act in accordance with advice if the Federal Constitution states otherwise.
Highlighting the way Article 150(1) is worded, Nizam said this is arguably one of the instances where the Agong has discretion to not act on the Cabinet’s advice.
He noted that the words “satisfied” and “may” in Article 150(1) are “suggestive of there being a discretion on the part of the Agong when it comes to issuing a Proclamation of Emergency”.
Beyond that, Nizam also highlighted a constitutional provision and a previous court decision which both said that a decision by the Agong on whether to declare an emergency cannot be reviewed or challenged in the courts.
Nizam was referring to Article 150(8) which states that the satisfaction of the Agong under Article 150(1) shall be “final and conclusive and shall not be challenged or called into question in any court on any ground”.
Nizam also referred to the Federal Court’s observations in the case of Stephen Kalong Ningkan v Government of Malaysia [1968] 1 MLJ 119, noting that the country’s highest court essentially held that “it is the King alone who decides whether a state of emergency” — where the security or economic life of the country was threatened — existed and that the King’s judgment on that was non-justiciable, or not reviewable by the courts.
Nizam however said there are “alternative schools of thought as to the exact scope and ambit of Article 150”, including alternative views of the Agong being bound by advice to declare an emergency and also other views that the courts may review a decision to declare an emergency.
Residual discretion?
Former attorney general Tan Sri Tommy Thomas had in a public statement on October 24 noted that the Agong acts on the advice of the prime minister in relation to Article 150 as Malaysia is a constitutional monarchy, but said the King still has “residual discretion” despite the true decision-maker being the prime minister.
“In other words, it is not automatic that every time a prime minister desires a Proclamation, the Agong must agree to it. The Agong is entitled to seek the advice of the Conference of Rulers, or indeed anyone whose advice the Agong values,” Thomas had said, among other things. 
Former Court of Appeal judge Tan Sri Mohamad Ariff Md Yusof had in a public statement on October 26 argued that there is a sound constitutional basis for the Yang di-Pertuan Agong to reject advice to proclaim an emergency, pointing out among other things the role of the Federal Constitution and the constitutional monarch as part of the system of checks and balances.
Citing the words “is satisfied” and “may” in Article 150(1), Ariff said that this points to the Yang di-Pertuan Agong’s “residual discretion”, further arguing that there is nothing in either Article 40(1) or 40(1A) to cancel out this residual discretion.
Lawyer Lim Wei Jiet speaks at the ‘Malaysia and Rome Statute’ forum at Universiti Malaya in Kuala Lumpur April 27, 2019. — Picture by Yusof Mat Isa
An alternative view
Lawyer Lim Wei Jiet noted that there are differing views equally across the political divide on whether the Agong is bound by advice when it comes to deciding whether to declare an emergency.
“The Agong has to follow the advice of the prime minister to declare the emergency if advised to do so,” he told Malay Mail when providing his view on the law, adding that this position is supported by the Privy Council case of Teh Cheng Poh in the 1970s and the Federal Court’s 2001 decision in the case of Abdul Ghani Ali Ahmad & Others v Public Prosecutor [2001] 3 MLJ 561. 
Lim said the Federal Court had in the Abdul Ghani case held that the Yang di-Pertuan Agong in acting under Article 150 as a constitutional monarch “must act on the advice of the Cabinet” as provided in Article 40.
Agreeing that the past court decisions meant the Agong would have to follow advice to declare an emergency even if the advice was questionable, improper or insufficient to justify such a declaration, Lim said however that any declaration of emergency can still be challenged in the courts after the declaration is made.
“However, if anyone feels that the prime minister's advice is actuated by bad faith, then the courts can review that declaration of emergency,” Lim said.
In February 2013, constitutional law expert Datuk Shad Saleem Faruqi had in his newspaper column in The Star set out differing legal views on the issue, before concluding that a government with a majority in Parliament has the right to give binding advice to the King in relation to the emergency powers under Article 150.
In the same opinion piece, Shad Saleem had also said there are three possibilities if the government abuses its emergency powers for wrongful purposes, namely a monarch has the option to delay, caution or warn, or refuse to issue the declaration of emergency, or scrutiny by the courts on issues of bad faith.
As for the technical point of whether the prime minister had last Friday actually tendered advice or only made a request to the Agong for an emergency declaration, Lim said it could be argued that the monarch was merely providing his view regardless of the situation.
“Yes, regardless of whether it is ‘advice’ within the meaning of Article 40 or merely a request, the Agong as the constitutional monarch is entitled to give his views that an emergency is not necessary at this stage. The prime minister can nevertheless insist that the Agong follow the advice pursuant to Article 40, in which case the Agong must follow such advice,” Lim said.
As for exceptions to the Agong being bound by the Cabinet’s advice, Lim said Article 40(2) provides three clear instances where the Agong has discretion, including the appointment of a prime minister, the withholding of consent to a request for Parliament’s dissolution, and the calling of a meeting of the Conference of Rulers for matters relating to the rulers’ privileges, position, honours and dignities.
Ultimately, on the point of whether the Agong has discretion or is bound by advice when it comes to declaring an emergency, Lim highlighted that there are differing views such as those by Mohamad Ariff, and said: “It is not an open and shut matter.”
Lawyer K. Shanmuga speaks to reporters at the Federal Court in Putrajaya February 13, 2020. ― Picture by Choo Choy May
Historical insights
Lawyer K. Shanmuga said the Federal Constitution as it now stands would appear to show that the Agong’s satisfaction that a grave emergency exists is subject to Article 40, “which states that all actions or decisions of the Agong (other than those expressly excluded in the Constitution or written law) are exercised on the advice of the Cabinet and the Agong is bound to act on that advice”.
Based on the statements issued by Istana Negara on October 24 and 25, Shanmuga said it would however appear that the Cabinet did not give such “advice” for an emergency to be declared, but had merely made proposals and suggestions including for a declaration of an emergency.
“Thus, the question of whether advice can be rejected is to my mind still academic at the moment. The prime minister and the Agong seem to have adroitly avoided this loaded Constitutional question, which is perhaps as it should be,” he told Malay Mail.
Shanmuga said the academic question of whether it was intended for the Agong to have “residual discretion” through the use of the word “satisfaction” in Article 150 requires further study, in light of the complex legislative history of Article 150 — which has seen multiple revisions.
“We should not forget that the version of Article 150 we have now has been amended numerous times. 
“In 1979, the Privy Council said quite clearly that the proclamation of emergency is something that is done by the Cabinet and not the Agong, and therefore the courts can look into the legality of such a proclamation. Immediately after that and until 1981, therefore, numerous amendments were made to restore the state of emergency that was then in force and to prevent a judicial review of proclamations of emergency.
“In 1983, the Constitution was amended so that the words ‘Agong’ were removed from Article 150 and replaced with ‘prime minister’ i.e. it would be the prime minister who proclaims the emergency. In 1984, however, the Constitution was amended again and Article 150 was changed back again to the Agong being the one who makes the proclamation. 
“I think any comment on this matter, therefore, should also take into consideration all of this legislative history in order to fully explain Article 150,” he said.
Based on footnotes in the Federal Constitution on Article 150, the Constitution (Amendment) Act 1983 had resulted in multiple changes to various parts of the provision including Article 150(1).
The 1983 amendment resulted in the replacement of the first reference to the Yang di-Pertuan Agong with the words “prime minister” and the substitution of the word “may” in Article 150(1) to read: “If the prime minister is satisfied that a grave emergency exists... he shall advise the Yang di-Pertuan Agong accordingly and the Yang di-Pertuan Agong shall then issue a Proclamation of Emergency.” This amendment came into force on December 16, 1983.
The same footnotes in the Federal Constitution however stated that Article 150 was again amended by the Constitution (Amendment) Act 1984 — in force from January 20, 1984 — to restore it to how it was originally worded before the 1983 amendments. 
This means it has been restored to how it currently appears, with Article 150(1) for example now requiring the Yang di-Pertuan Agong to be the one satisfied that there exists a grave emergency and stating that the King “may” — instead of “shall then” — issue a declaration of emergency.
Shanmuga concluded: “For now, I am just glad that there is no emergency. But I await the prime minister and Cabinet’s resignation: Since they even contemplated declaring an emergency and the people were forced to rely on a hereditary monarchy to save our democracy, something is very wrong with the Cabinet we now have.” - malaymail

---