KUALA LUMPUR – The constitution already provides room for the Yang di-Pertuan Agong to seek a second opinion through the Federal Court in the event of an indecision or disagreement with Putrajaya over legal matters.
As such, legal eagles said there is no necessity for His Majesty to set up a specific privy council to advise him.
This follows a call from members of royal houses, as well as experts, for such a council to be established to counter the attorney-general should there be conflicting views between Istana Negara and the executive body.
Speaking to The Vibes, former Bar Council president Salim Bashir Bhaskaran noted that as per Article 130, the king may refer to Malaysia’s highest court for an opinion on any question relating to the constitutional provision.
“So, if the Agong wishes to, he can exercise the article and ask for an opinion on any question to the effect of the constitution. It isn’t confined to a specific issue.
“In this regard, I don’t think we need another council to advise the royalty.”
According to Article 130, the Agong can refer any question that has arisen or is likely to arise, and the Federal Court shall pronounce in open court its opinion on the matter referred.
Whether there can be partiality on the part of judges, who are hand-picked by the prime minister, Salim said each justice has sworn to exercise their duty independently.
The call for a privy council emerged after several quarters questioned the impartiality of Attorney-General Tan Sri Idrus Harun in advising the king on matters relating to the emergency declared over Covid-19, as well as the position of the prime minister.
This came after Idrus on June 25 said the monarch must act only on the advice of the cabinet, and on July 8 backed Tan Sri Muhyiddin Yassin as prime minister despite Umno’s withdrawal of support.
Some have questioned his role in advising Istana Negara on the emergency that began in January, which many have claimed to be a misguidance.
While the attorney-general is bound by Article 145 of the constitution to advise the Agong and federal cabinet on legal matters, said Salim, whether his opinion is the right one is subjective. Also, there is no way to prove that he has a biased slant.
Referring to a case between the federal government and DAP’s Lim Kit Siang in 1988, he noted how the top court ruled that the legal system requires the public to trust the attorney-general’s impartiality and fair-mindedness.
“If he fails to conduct fairness and protect the public interest, the matter can be raised only in Parliament,” he said, explaining that the House can then debate the matter and pressure the prime minister to advise the king on a change in attorney-general.
Constitution does not recognise privy council
Datuk Abdul Fareed Abdul Gafoor, also a former Bar president, agrees that the Agong can tap Article 130 for additional legal advice, and need not rely on a privy council.
He argued that the establishment of such a body is inconsistent with the spirit of the constitution.
“The formation of the country was based on the federal constitution. This document provides that the attorney-general should give advice to the government. There’s nothing in the law that states we can have a privy council.
“Of course, His Majesty can seek legal opinions from his friends and other experts, but this is not recognised under the law. The constitution only provides for Article 130, which is seeking the opinion of the apex court.”
Before 1985, the Federal Court – then the Supreme Court – was only the second-highest court in the land, as it was subordinate to the Privy Council in England, which was abolished that year.
On the criticism levelled at Idrus for his supposed impartiality, Fareed said this is only speculative, similar to the brickbats hurled at former attorney-general Tan Sri Tommy Thomas when Pakatan Harapan was in power.
In any case, he said, should the Agong be dissatisfied with Idrus, His Majesty can put his views to the prime minister, who, in return, advises on a new appointment, in line with the constitution. – The Vibes, July 18, 2021
