Yes, cabinet can advise Agong on emergency, but what about SIEC?

KUALA LUMPUR – According to lawyers, Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Takiyuddin Hassan is correct to say that the cabinet has a constitutional duty to advise the Yang di-Pertuan Agong on whether or not the current state of emergency is to be extended.

However, they also took the minister to task, questioning the point of forming the Special Independent Emergency Committee (SIEC) in the first place.

Lawyer Purshonataman Puvanendran pointed out that under Article 40(1) of the federal constitution, the Agong is to be advised by the government.

Additionally, when it comes to matters pertaining to the state of emergency, Article 150 provides that it is the duty of the king to determine whether such a proclamation is required.

However, if Takiyuddin insists that it is the cabinet that will advise the Agong on the extension or revocation of the emergency, Purshonotaman queried why the executive formed the SIEC.

“This then raises the question on the function of the SIEC,” he said.

“The committee was formed by virtue of Section 2 of the Emergency (Essential Powers) Ordinance 2021 for the specific reason of advising the Yang Di-Pertuan Agong on the ongoing emergency and, especially, when it should end,” Purshonataman told The Vibes.

Similarly, lawyer Lim Wei Jiet, who is a contributor in Halsbury’s Laws of Malaysia (Constitutional Law), said that the SIEC was the creation of the Perikatan Nasional (PN) administration and it seems contradictory for it to backtrack on its move.

The PN government has to face the fact that the emergency ordinance itself established a special committee to advise the YDPA (king) on whether to extend the emergency or otherwise – hence, it would be contradictory for it to take a different position now.

“They have to explain this grave inconsistency,” Lim told The Vibes.

Poser over Muhyiddin’s mandate

Meanwhile, former Bar Council chairman Ragunath Kesavan explained that constitutional provisions are clear, adding that the power to extend the emergency is based on the advice of the cabinet, which would be subsequently followed by the assent of the Agong.

Pointing out that there are no issues with discourse on whether the emergency should be extended, Ragunath said the major issue for the cabinet might be Prime Minister Tan Sri Muhyiddin Yassin’s mandate in Parliament.

“The extension of the emergency cannot be used to extend the tenure of the prime minister if it is clear that he has lost the majority in Parliament.

“Umno has in no uncertain terms announced publicly that it will not support the government after August 1,” Ragunath said.

Recently, Umno delegates decided to award power to its party’s president and Supreme Council to decide on when it would withdraw support for PN, if the coalition shows no indications to hold elections in the near future.

“So, where does this lead the prime minister? He has to do the right thing and tender his resignation and allow the Agong to appoint another MP as prime minister,” Ragunath added.

Is Parliament not essential?

On the matter of Parliament’s resumption, lawyer Mahajoth Singh highlighted the Agong’s decree in February stating that the legislative body can reconvene.

Pointing out that excuses related to Covid-19 are baseless, Mahajoth said Parliament is competent enough to put in place measures to curb the spread of the virus.

“The thing is, during this movement control order, coupled with an emergency, essential services are allowed to operate.

“By not allowing the Dewan Rakyat to operate, does this mean Parliament is not essential?” he said.

Yesterday, Bernama quoted Takiyuddin as stating that it is the constitutional responsibility of the government to continue advising the Agong on matters pertaining to the emergency.

He added that this is in line with the cabinet’s responsibility and core policies to focus on measures to effectively prevent the spread of the Covid-19 virus among the populace.

It is understood that Takiyuddin was responding to Health Director-General Tan Sri Dr Noor Hisham Abdullah’s statement to the media that, should there be a revocation of emergency, there would be no reason to delay already postponed elections even further.

Dr Noor Hisham added that whether or not the emergency is extended, it would be up to the king to decide. – The Vibes, June 13, 2021