By Kenneth Tee | Malay Mail
Prime Minister Tan Sri Muhyiddin Yassin is the person who must decide when Parliament should meet despite the Emergency Ordinance saying it was the Yang di-Pertuan Agong who convenes the federal legislature, constitutional lawyers explained.
They noted that while Section 14(1)(b) of the Emergency (Essential Powers) Ordinance 2021 empowered the Agong to convene Parliament, the Federal Constitution states that he only does so on the advice of the prime minister.
However, all the lawyers who spoke to Malay Mail agreed the prolonged deferment of parliamentary sittings was unjustifiable given that most activities in the country have resumed normality.
“Yes, the onus is still on the prime minister to advise the Agong on a suitable date to summon Parliament even though Section 14 states that Parliament shall be summoned, prorogued and dissolved on a date as the Yang di-Pertuan Agong thinks appropriate.
“Nothing in the ordinance suspends the operation of Article 40 of the Federal Constitution which requires the Yang di-Pertuan Agong to act on advice in the exercise of His Majesty’s functions under federal law,” lawyer New Sin Yew said.
Going further, New said the prime minister should set a date to reconvene Parliament as soon as possible given that most activities in the country have been greenlighted to resume operations.
“In a time where executive power is so overwhelming, we need Parliament back as soon as possible to play its democratic role of checking on the executive,” he added.
On January 11, Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah proclaimed a state of Emergency across Malaysia on the advice of the prime minister.
In the first Emergency Ordinance issued following the proclamation, all legislatures and elections in the country have been suspended for the duration of Emergency lasting until August 1.
Co-chair of the Bar Council Constitutional Law Committee, Andrew Khoo concurred that Muhyiddin, as the Leader of the House in the Dewan Rakyat, must set the dates for when Parliament will reconvene.
“Yes. So although Parliament is summoned by the Yang di-Pertuan Agong, it really is done after consulting with the prime minister,” he said.
Last week, Al-Sultan decreed that Parliament could reconvene even during the Emergency period before stressing Malaysia was a parliamentary democracy with a constitutional monarchy.
As such, Khoo said it was untenable for Muhyiddin to keep Parliament suspended on the grounds of COVID-19, citing the reopening of almost all sectors in the country with the exception of Parliament.
“If the prime minister feels able for Parliament to meet, he should advise the Yang di-Pertuan Agong accordingly.
“The government has allowed almost everything to re-open now. Except, oddly, Parliament. And vaccines are beginning to be administered, and I am sure MPs will be high on the priority list, since their work has been classified as ‘essential’,” he added.
Citing Section 14(1) of the EO and the Federal Court case in Teh Cheng Poh v. Public Prosecutor , constitutional lawyer Nizam Bashir said Article 150(2) of the constitution does not imbue the Agong with the ability to act on his own initiative.
Instead, he said the constitutional monarch was required by Article 40(1) to act in accordance with the advice of the Cabinet.
In the aforementioned case, Nizam said it was affirmed that if the Agong is of the opinion that a particular state of affair exists or that particular action is necessary, this was in reality a reference to the collective opinion of the Cabinet or the specific minister responsible for advising the Agong on the specific matter.
“The phrase ‘as the Yang di-Pertuan Agong thinks appropriate’, while seemingly vesting discretionary powers on the constitutional monarch, is a power that must be exercised according to law, and must follow the advice of the prime minister, or in accordance with Parliament and the courts.
“In summary, the onus is still on the prime minister to render his advice to the Yang di-Pertuan Agong,” he said.
In a differing view, lawyer Alliff Benjamin Suhaimi said a literal reading of Section 14 of the Emergence Ordinance 2021 suggested that the PM’s advice was unnecessary for the Agong to recall Parliament.
“The Yang di-Pertuan Agong has the discretion and authority to decide on matters relating to Section 14, and most of the other provisions in the 2021 Ordinance,” he said.
Section 14(1) of the Emergency Ordinance states for so long as the emergency is in force, the provisions relating to the summoning, proroguing and dissolution of Parliament in the Federal Constitution shall have no effect.
Asked if this would also be in conflict with the prime minister’s prerogative as the Leader of the House in the Dewan Rakyat to fix the dates of the actual meetings during the session, Alliff said that would apply ordinarily but noted that these were extraordinary circumstances.
“In a normal situation yes but this is not the case during an emergency. However, how Section 11 is drafted may give room for the prime minister to argue that because it does say legislative powers lie with the current executive.
“But legislative powers may not cover convening Parliament since that is clearly separated and covered under Section 14,” he added.
Under Section 11 of the ordinance, the executive shall continue to exercise the executive authority of the Federation for so long as the emergency is in force.
However, Aliff was also in agreement that the prime minister should begin notifying lawmakers for a parliamentary sitting once a date has been provided by the Agong.
Under Article 55 of the Federal Constitution, the Agong is vested by the Constitution to summon for the Parliament to meet within six months between the last proceeding in the last session and the date appointed for its first proceeding in the next session.
There have been several suits filed in court challenging Muhyiddin’s Perikatan Nasional government’s decision to suspend Parliament during the Emergency.
Outside the court, other lawmakers allied with the ruling PN, including Deputy Speaker Datuk Seri Azalina Othman Said, had openly criticised Parliament’s suspension.
She penned a letter earlier this month addressed to Attorney General Tan Sri Idrus Harun, criticising his advice to the PN government, saying he should have offered suggestions to enable Parliament to sit during the Emergency that was called purportedly to combat the health and economic crises brought about by the COVID-19 pandemic.
Azalina pointed out that many other governments in countries with worse COVID-19 cases than Malaysia’s had continued with parliamentary sittings, and cited the UK as an example.