Why I disagree with the Malaysian Attorney General’s opinion

The Honourable Attorney General issued a Media Statement on June 25, 2021. Legal authorities are irritated by it.

The Hon. AG claims that the King may only call Parliament on the Prime Minister's recommendation. Section 14(1)(b) of the Emergency Ordinance 2021, in his view, On its face, this implies that the King does not have exclusive authority over the day on which Parliament should be called to meet. Two problems arise as a result of these two opposing viewpoints: one is a conflict, and the other is a constitutional impasse. We'll start with the most pressing issue: the war. Sec. 14(1) may now be interpreted in two distinct ways (b). Please allow me to refresh your memories. According to Section 14(1)(b), ‘As long as the State of Emergency exists –...

(a) The House of Commons shall be called, prorogued, and dissolved.

on a date determined by the Yang Di-Pertuan Agong.'

The Prime Minister is not mentioned in Section 14.

However, the attorney general invokes Article 40 of the United States Constitution. Article 40 says unequivocally that the King must only act in line with the Prime Minister's recommendation. Does it, or does it not? Take a peek at it. The first paragraph of Article 40 states: 

‘In the performance of his duties under this Constitution or federal law...[the King] must act in line with the Cabinet's recommendations.'

The term "in the execution of his functions" simply means "doing his job." It is a reference to His Majesty's responsibilities. But what law governs the King's responsibilities? The King's responsibilities are divided into two categories: (a) constitutional obligations and (b) federal law duties. The term "federal law" refers to legislation enacted by Congress. As a result, the King's responsibilities during the present Emergency, as defined by Article 150, are governed by two laws. Constitutional law is one of them. The second group of legislation are not covered by the Constitution. The ‘Emergency (Essential Powers) Ordinance 2021' is the name of the legislation. Parliament has not yet passed the 'Emergency Ordinance.' As a result, it is not a federal legislation. As a result, when the King wants to summon Parliament, he has two options. Article 55 of the Constitution gives him the authority to do so. The procedure for summoning, proroguing, or dissolving Parliament is outlined in Article 55. The King is required by Art 55 (1) to call Parliament. When Art.55 and Art.40 are combined, it implies that if the Prime Minister says to the King, "Your Majesty, please call Parliament on July 10th," the King cannot refuse. Is the Prime Minister, on the other hand, given the same authority if he chooses to dissolve Parliament?

Assume that the current Prime Minister loses his majority in Parliament. He has two options: quit like Mahathir or call a general election. Assume the current Prime Minister meets with the King and gives him the following advice:

‘Your Majesty, I have lost control of the bulk of the people. Could Your Majesty kindly dissolve Parliament so that an election may be called?'

Is it necessary for the King to accept this advice?

Article 55 contains the solution to such question (2). The King is not obligated to listen to what the Prime Minister has to say. ‘[The King] may prorogue or dissolve parliament,' it states in Article 55 clause 2. The term "may" in law refers to the King's ability to say "Yes" or "No." Again, he has that authority under Article 40 (2). As a result, the notion that the King must accept whatever the Prime Minister asks him to do is simply not true. The King may act in his own judgment as long as he follows the principles of the Rule of Law and the spirit of the Constitution, even if he deviates from the Prime Minister's recommendations. Now we get to the second source of the monarch's summoning powers: the "extra powers" that the emergency ordinance grants the king. The King, not the PM, may summon Parliament to convene "on a day as the King deems suitable," according to sec. 14(1)(b) of the Emergency Ordinance, which we've addressed many times. Section 17 of the Emergency Ordinance, according to the Attorney General, maintains the Prime Minister's authority under Article 40. He claims that the King must heed the Prime Minister's counsel. Unfortunately, I must disagree with this view. If you look closely at section 17 of the Ordinance, you'll see that it grants the King additional rights.

It reads as follows:

'The rights granted by the ordinance are in addition to those granted by the written laws:

‘For the duration of the Emergency, the powers granted under this ordinance must be in addition to, not in lieu of, the authorities granted under any other written legislation now in effect.'

Consider the following sentence:

‘For the duration of the Emergency, the powers granted by this decree shall be in addition to...'

The phrase "the powers granted..." is very important. To whom are these powers granted? According to the AG, this refers to the Prime Minister's authority to advise the King. My point of view is the polar opposite. I believe that how you utilize Section 17 of the Emergency Ordinance is determined by its objective. The question is how much authority clause 14 (1) (b) gives the King. The Attorney General claims that the King's powers are restricted to the Prime Minister's recommendation.

However, section 17 may alternatively be interpreted as follows:

‘For the duration of the Emergency, the powers conferred on the King shall be in addition to those conferred on him by the Constitution.'

So, what happens next? In normal circumstances, this implies that the King cannot act without the approval of the Prime Minister. In an emergency, however, clause 14(1)(b) gives the King the additional authority to summon Parliament on whatever day he chooses. This is because, under section 17, he has "extra powers." Isn't that the most logical stance to take? But there is a nuclear option that I am now pursuing. The Attorney General's whole argument is based on Article 40. Articles 40 and 55 of the Constitution are constitutional provisions. You already know what happens when we combine them:

When Art 55 is combined with Art 40, it implies that the King may only summon parliament on the recommendation of the Prime Minister.

In comparison, the Emergency Ordinance states:

The King may choose the date — because he has "extra rights," according to Section 14 of the Emergency Ordinance, read along with Section 17.

As a result, Articles 40 and 55 are in contradiction with Sections 14 and 17 of the Emergency Ordinance. So, what's the point? So, what's next? Which will come out on top? Which is the correct answer? We begin with the most apparent option: the Constitution. Article 4 of the Constitution declares that any legislation that contradicts the Constitution's provisions is null and invalid. However, if you go a little further, you will come upon an iceberg— in this instance, Iceberg No.1. According to Section 18 of the Emergency Ordinance, ‘If the Ordinance and any other ‘written law' are in conflict, the Ordinance shall take precedence.'

Please take special note of the term "written law." You'll see that you've struck another iceberg. According to Article 160, "written law" contains the Federal Constitution's provisions. Section 18 of the Emergency Ordinance states that if the Emergency Ordinance and a Constitutional Provision disagree, the Emergency Ordinance takes precedence. Is it possible for an emergency decree enacted without legislative approval to have powers that override the Constitution? Article 4 of the Constitution, on the other hand, declares that constitutional provisions are paramount to any other written legislation. However, section 18 of the Ordinance states that the ordinance's requirements have precedence over any other "written legislation." As a result, there is a major conflict between the Federal Constitution's Articles 40 and 55 and the Emergency Ordinance's Sections 14(1)(b), 17, and 18. Does section 18 nullify the Constitution now that we're in a state of emergency?

THIS RESULT IN ONLY ONE QUESTION.

Is there now a constitutional stalemate — or a constitutional impasse — between constitutional provisions and emergency ordinance provisions?

Yes, I believe the answer is.

WHO IS CAPABLE OF RESOLVING THIS CONFLICT?

No court may challenge the Proclamation of Emergency or the Emergency Ordinance, according to Article 150 (8):

This is supported by two recent High Court decisions.

Because no court may challenge the Emergency Proclamation or its Emergency Ordinance, the only vehicle left in the Constitution to challenge (a) the government; (b) the Emergency Proclamation; and (c) the Emergency Ordinances is Parliament. Article 150 states that this is guaranteed (8).

The Proclamation and the Ordinance must be ‘laid before' Parliament, according to the law. The declaration and the Emergency Ordinance may be accepted or rejected by Parliament. I'd like to mention two additional things in passing: A lawmaker is unable to understand it. This will lead to irrationality. Because he will interpret it in any manner he sees fit. Second, in all of the instances cited by the Attorney General — in all of those emergency situations — there was no counterpart to sections 14(1)(b), 17 or 18 of the present Emergency Ordinance in the Emergency Ordinances. Isn't it necessary and essential for Parliament to meet since only Parliament has the authority to challenge these ordinances? So that we can deal with the increasing flood of Covid 19 infections, as well as the worrisome rise in the number of people dying as a result of the pandemic? Why, therefore, is it necessary to postpone summoning Parliament until late August or early September this year, in a subject of national significance that jeopardizes the country's peace? To meet the people's urgent demands, every possible method must be used. It is not permissible to utilize the law to perpetuate a constitutional dilemma. Politicians are incapable of acting in their own best interests. They must act in the best interests of those they pledged to defend.