SEVERAL views have been expressed in the media recently as to whether a proclamation of emergency by the Yang di-Pertuan Agong can be challenged in court.
Those holding the view that such proclamation may be challenged in court, that is justifiable, primarily argue under one or two grounds – the King’s decision is actually an executive decision or that the emergency’s purpose cannot be used to “defeat a constitutionally guaranteed right”.
It is very clear from Article 150 (1) of the Federal Constitution that the Agong may issue a proclamation of emergency if he is satisfied that “a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened”.
In fact under Article 150 (2) it is sufficient if the Agong is satisfied that there is imminent danger of the occurrence of such threat even before the actual occurrence of it.
In both of these articles it is clear that it is the Agong that must be so satisfied with the actual occurrence or the imminent occurrence of such threats .
The legal question that needs to be asked is this: must the Agong act on advice of the prime minister in this matter? If the answer is that the Agong must act on the advice of the prime minister, then it is considered to be an executive decision and therefore probably justiciable.
Those who argue that this is an executive decision rely on Article 40 (1A) where they interpret that the Agong shall act on executive advice (the cabinet) in exercising his functions under the constitution.
However, the constitution does provide instances where the Agong can exercise his own discretion and does not have to act on executive advice.
This is provided for under Article 40(1), (2) and (3) itself. Article 40 (1) clearly states that the Constitution may have provisions where the Agong is not compelled to act in accordance with executive advice.
In Article 40 (2), for example, the Agong can withhold his consent to a request for the dissolution of Parliament.
Last year in the United Kingdom, in the case of R (on the application of Miller) v The Prime Minister, the issue was whether the advice given by the prime minister to the Queen for the prorogation of Parliament was lawful or not.
In the UK, Parliament does not decide when it should be prorogued.
This is a prerogative power exercised by the Crown.
The issue arose in this case whether the prime minister’s advice to the Queen was lawful is justiciable in a court of law?
The UK court held that it was justiciable, among other things, as it was an executive action.
However, does a proper reading of Article 150 (1) and (2) necessitate the Agong to act only on the advice of the pime minister? Can he, for example, not exercise his own discretion after being “satisfied that a grave emergency exists”? Is the Agong’s satisfaction justifiable?
A plain reading of Article 150(8) (a) states that “the satisfaction of the Agong mentioned in clause (1) and clause (2B) shall be final and conclusive and shall not be challenged or called in question in any court on any ground”.
Article 150 (8) (b) even states that “no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of a Proclamation under Clause (1)”.
Arguably, therefore, the proclamation of emergency made by the Agong upon his satisfaction cannot be challenged in court. Whether this is a worrisome position or not is another matter altogether.
In 2003, the Federal Court in the case of Kam Teck Soon v. Timbalan Menteri Dalam Negeri, Malaysia & Ors And Other Appeals, had to decide on the validity of some sections of an ordinance promulgated during an emergency which was inconsistent with some other provisions of the constitution.
The court having considered Articles 150(2) and Article 150 (6) of the constitution stated the provisions of the ordinances in question must prevail over the federal constitution.
Based on the above humble opinion, it is too simplistic to say that the Agong’s decision to declare an emergency under Article 150 is certainly justiciable without considering the actual provisions of the constitution and the attending specific circumstances surrounding the matter.
The law, unfortunately, has to be read as to what it is and not skewed to what is desired. – The Vibes, October 25, 2020
Datuk Seri Jahaberdeen Mohamed Yunoos is a senior lawyer.
