KUALA LUMPUR – As debate stirs over whether a privy council is relevant and legally justifiable in Malaysia, a constitutional expert has advocated for its formation on the basis that it ensures a certain degree of privacy with regard to matters concerning royal consultations.
Datuk Wan Ahmad Fauzi Wan Husain stressed that such a council is necessary, especially in light of Article 130 of the federal constitution, which requires that the opinion of the Federal Court, when sought by the Yang di-Pertuan Agong, be pronounced in open court.
According to Article 130, the Agong may refer to the Federal Court for its opinion on any question of the effect of any provision of the constitution that has arisen or appears to him likely to arise.
It further stipulates that “the Federal Court shall pronounce in open court its opinion on any question so referred to it”.
On Friday, The Vibes had reported that experts on the matter, ranging from lawyers to members of royal houses, have acknowledged that that the Agong should have such a council with his own legal advisers, to counter the attorney-general in the event of a disagreement between Istana Negara and the executive body led by the Prime Minister’s Office.
This came about after Attorney-General Tan Sri Idrus Harun had on June 25 said the monarch must act only on the advice of the cabinet.
Idris had on July 8 backed Tan Sri Muhyiddin Yassin as prime minister despite Umno’s withdrawal of support for his leadership of the country.
In an interview, Wan Fauzi said that as an alternative to address the matter, amendments can be made to Article 145 to guarantee impartiality on the part of the attorney-general.
He suggested that the appointment of the top federal lawyer be made by the Agong himself, upon the recommendation of the Conference of Rulers, and without the prime minister’s involvement.
He also proposed that the dismissal of the attorney-general should not be enabled with immediate effect on the advice of the prime minister. The termination of the attorney-general’s service should in such a case first go through a tribunal, he explained.
This will ensure the post holder is able to act without fear or favour when providing legal opinions to the king that may not be aligned with the cabinet’s interests.
On Idrus possibly acting against the rakyat’s best interests, Wan Fauzi said this would call into dispute his integrity as a lawyer, as the attorney-general has taken his oath to uphold justice.
Earlier today, The Vibes quoted legal experts pointing out that the federal 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.
Former Malaysian Bar 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.
Datuk Abdul Fareed Abdul Gafoor, also a former Bar president, said that there is nothing in Malaysian law stating that the country can have a privy council.
He said that the king 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, he stressed, which is seeking the opinion of the apex court. – The Vibes, July 18, 2021
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