No argument here, Agong can only act on advice of cabinet, AG affirms

KUALA LUMPUR – In an bid to quell debate on the Agong’s constitutional position in relation to emergencies, Attorney-General Tan Sri Idrus Harun is using legal arguments to confirm that the monarch is to act upon the advice of the cabinet. 

This position, he said, is supported not only by past case law, but is contained in the federal constitution itself. 

“Article 40 (1) and (1A) of the federal constitution provides, among others, when performing constitutional or federal legislative functions, the Agong must accept and act upon the advice of the cabinet, unless provided otherwise in the nation’s most supreme law,” the statement issued by the Attorney-General’s Chamber’s read.

Idrus also referred to paragraph 58 of the Reid Commission, which states that the Agong must be a constitutional ruler who acts on the advice of ministers on all executive actions.

“The position of the Agong does not change although a state of emergency has been declared.”

Supporting his position further, he cited a 1975 case between the government and one N. Madhavan Nair, in which justice Chang Min Tat said the executive authority of the monarch is still limited to acting upon the advice of the executive, although emergency legislative power shifts to the Agong during an emergency.

“It is only in certain matters, spelled out to be the appointment of a prime minister, the dissolution of Parliament, and the requisition of a meeting of the Conference of Rulers, that he (Agong) has discretion,” said an excerpt from the case.

“Emergency rule that passes the legislative power from Parliament to the Agong has not displaced his position as the constitutional monarch, bound by the constitution to act at all times on the advice of the cabinet.”

On emergency ordinances, Idrus said the case of Teh Cheng Poh v PP (1979) posits a similar legal explanation.

The Privy Council, back then Malaysia’s highest court based in the United Kingdom and comprising British judges, said this power “is conferred nominally upon the Agong by virtue of his office as the supreme head of the Federation… his functions are those of a constitutional monarch… he does not function under the constitution on his own initiatives, but is required by Article 40(1) to act in accordance with the advice of the cabinet.” – The Vibes, June 25, 2021