THERE seems to be a lot of debate and confusion as to whether His Majesty the king can on his own initiative convene Parliament. A debate between the honourable Attorney-General, constitutional experts, etc.
Many have misunderstood that central issue, which is whether the king can convene Parliament during an emergency. So, let me break it down.
Article 40(1) and Article 40(1)(A) of the federal constitution states that the Yang Di-Pertuan Agong in exercising his functions under the constitution is to act on the advice of the cabinet or the minister acting under the general authority of the cabinet.
Most people seem to be fixated with this Article 40. However, most have forgotten that we are now under an emergency. Hence, the provisions that we must be looking at is Article 150 of the federal constitution and not just read Articles 40(1) and 40(1)(A) in isolation.
Article 150 is a specific article for the proclamation of emergency. Article 150(1) grants the Agong the powers to proclaim an emergency if he is satisfied that a grave emergency exists whereby the security, economic life or public order of Malaysia or any part thereof is threatened and there is imminent danger.
This proclamation of emergency has been made. Hence, the remaining provisions of Article 150 of the constitution now applies during the period of emergency. So we have to look at what the remaining provisions of this particular article states.
Article 150(2B) states that during the proclamation of an emergency, the Agong is empowered to promulgate such ordinances that appear to him is required, and Article 150(2C) states that any ordinance promulgated under Article 150(2B) shall continue in full force until it is revoked or annulled under Article 150(3) or until it lapses under Article 150(7), where the promulgation of the emergency ceases to be in force at the expiration of six months, which in this case is August 1.
The Agong had exercised his powers and promulgated the Emergency (Essential Powers) Ordinance 2021. So we now have to look at Section 14 of the emergency ordinance, which states:
14(1) For so long as the emergency is in force:
1. The provisions relating to the summoning, proroguing and dissolution of Parliament in the federal constitution shall not have effect, and;
2. The Parliament shall be summoned, prorogued and dissolved on a date as the Agong thinks appropriate.
Based on the above, it is my respectful view that:
1. Article 40 as relied on by many that the Agong can only convene or summon Parliament on the advice of the cabinet or prime minister is incorrect as Section 14(1)(a) of the Emergency Ordinance states “provisions relating to the summoning, proroguing and dissolution of Parliament in the federal constitution shall not have effect”.
2. Hence, from the above, Article 40 of the constitution has no effect whatsoever.
3. Article 14(1)(b) of the emergency ordinance states: the Parliament shall be summoned, prorogued and dissolved on a date as the Agong thinks appropriate. From that, it is clear that the Agong has the power to summon and convene Parliament as His Majesty deems fit. Further, the said section uses the word “shall” and therefore its application, in law, is mandatory.
Then there is Article 18 of the emergency ordinance, which states: “In the event of any conflict or inconsistency between the provisions of this ordinance and any other written law, the provisions of this ordinance shall prevail and the conflicting or inconsistent provisions of such other written law shall be deemed to be superseded to the extent of the conflict or its inconsistency.”
Therefore, based on Section 18 of the emergency ordinance, if there is a conflict between the Section 14 of the emergency ordinance (that is the power of the Agong to summon Parliament) and Articles 40(1) and 40(1)(A) of the federal constitution, where the Agong must act on the advice of the cabinet or the prime minister, then Section 14 of the emergency ordinance will prevail and apply in that the Agong has the power to summon Parliament.
There are some that may argue that Section 14 of the emergency ordinance is inconsistent with the federal constitution and therefore pursuant to Article 4 of the constitution, the said Section 14 is void as Article 4 states: “4(1) This constitution is the supreme law of the federation and any law passed after Merdeka Day which is inconsistent with this constitution shall, to the extent of the inconsistency, be void.”
However, this emergency ordinance was passed during the proclamation of an emergency and pursuant to Article 150(2B) of the constitution. Accordingly, Article 150(6) of the constitution states:
“(6) Subject to Clause (6A), no provision of any ordinance promulgated under this article, and no provision of any act of Parliament which is passed while a proclamation of emergency is in force and which declares that the law appears to Parliament to be required by reason of the emergency, shall be invalid on the ground of inconsistency with any provision of this constitution.”
(The above section relates to ordinances promulgated during an emergency pursuant to Article 150 of the federal constitution.)
Based on the above, Section 14 of the emergency ordinance is valid and binding. Accordingly, it is my humble and respectful view that the Agong can exercise the powers conferred upon His Majesty pursuant to Section 14 of the emergency ordinance to summon Parliament on a date that His Majesty thinks appropriate. – The Vibes, June 28, 2021
Datuk Seri Rajan Navaratnam is legal counsel for The Vibes
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