KUALA LUMPUR – The Yang di-Pertuan Agong only has about 48 hours to remove Prime Minister Tan Sri Muhyiddin Yassin.
After midnight tomorrow, the emergency ordinance will be over, thereby limiting and weakening the powers granted to Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah under the current emergency proclamation, that allows the king wide-ranging powers to even remove his prime minister.
So, what can the king do?
The clearest and most obvious step is to summon all MPs individually to Istana Negara as soon as possible to determine if Muhyiddin still has the backing of the majority of the House.
This would be the best barometer, as it is the next best step to a no-confidence motion in the Dewan Rakyat, which is expected to be blocked by Speaker Datuk Azhar Azizan Harun.
At the moment, Muhyiddin seems to command the support of 114 MPs to the opposition’s 105.
However, one must take into account that Umno president Datuk Seri Ahmad Zahid Hamidi has clearly said many times that his party does not support the Bersatu president but is only backing the Perikatan Nasional (PN) administration.
Should Umno’s 37 MPs pull support from the Pagoh MP, it can effectively nullify Muhyiddin’s administration.
On the other hand, should Umno’s cluster of ministers and deputy ministers continue to prop up this ailing government, it will leave the party with 22 MPs who can still comfortably remove Muhyiddin from office.
The Vibes had reported that it only takes five Umno MPs breaking away from PN to dissolve the current administration.
However, this would still leave the opposition in less than a firm position to form a government, seeing that it only commands between 109 and 110 MPs.
A senior constitutional expert who requested anonymity told The Vibes that under the Westminster system, if it becomes clear that the prime minister no longer enjoys majority support in the House, the Agong can grant the opportunity to the opposition leader to try to form a majority government.
If the opposition fails to form a majority government, then the next step will be a minority coalition government.
Revoking Section 11 of emergency ordinance can remove Muhyiddin
Senior lawyer Mohamed Haniff Khatri Abdulla pointed out that under the emergency ordinance, the king has actually been granted absolute power through Article 150(2) of the federal constitution, until it ends at midnight tomorrow.
“The first sentence of the Emergency (Essential Powers) Ordinance 2021 states: An ordinance promulgated by the Yang di-Pertuan Agong pursuant to Clause (2B) of Article 150 of the federal constitution.
“This sentence alone shows how the Agong obtained his absolute power during an emergency, which he then vested upon the prime minister and his cabinet, under Section 11 of the emergency ordinance.
“His Majesty can simply revoke Section 11 and by doing so, he immediately strips Muhyiddin and his cabinet from holding any positions of authority,” observed Haniff.
Section 11 of the ordinance touches upon the executive and legislative powers.
It states:
For so long as the emergency is in force –
(a) The prime minister and the cabinet existing immediately prior to the issuance of the proclamation of emergency on 11 January 2021 who have been conferred the executive functions shall continue to exercise the executive authority of the Federation and such other persons who have been conferred the executive functions by law shall continue to exercise such functions
(b) The menteri besar or chief minister and the state executive council or state cabinet of the respective states existing immediately prior to the issuance of the proclamation of emergency on 11 January 2021 who have been conferred the executive functions shall continue to exercise the executive authority of the states and such other persons who have been conferred the executive functions by law shall continue to exercise such functions; and
(c) The legislative functions to make subsidiary legislation under federal laws and state laws shall continue to be exercised by the persons so authorised by such laws.
What happened yesterday
Yesterday, Comptroller of the Royal Household Datuk Ahmad Fadil Shamsuddin issued a statement where His Majesty Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah asserted that the application to revoke the emergency ordinances, backdated to July 21, was “hastily made without presenting it in Parliament”, and that “the contradictory and misleading statement in Parliament failed to respect the principle of the rule of law in the Rukun Negara”.
This “disregarded His Majesty’s functions and powers as the head of state, as enshrined in the federal constitution”.
“To this, His Majesty expresses great disappointment over the statement made on July 26 (Monday) that the government has revoked all emergency ordinances promulgated by His Majesty, although the revocation has not yet been given royal assent,” said the statement.
No Agong has ever issued such a strongly worded statement where he named individuals in Putrajaya as disregarding the wishes of the king and the Malay rulers.
The two-page document stated that the ruler was disappointed with Law Minister Datuk Seri Takiyuddin Hassan for misleading Parliament, insulting the royal institution, defying the king’s instructions to debate the emergency ordinance, and misleading the nation.
However, instead of acceding to the Agong’s decree and wishes, the Muhyiddin administration doubled down and outright told the royal institution that they may only act upon the advice of the cabinet.
A lengthy statement by the Prime Minister’s Office cited Article 40(1) of the federal constitution saying that the Agong must follow the advice of the cabinet – in an apparent counter-rebuke to the head of state.
However senior lawyer Datuk Seri Rajan Navaratnam said while Article 40(1) states that the Agong in exercising his functions under the constitution shall act in accordance with the advice of the cabinet, it also states except as otherwise provided in the constitution.
“So, where the constitution provides, the Agong is not compelled to act on the advice of the cabinet.
“In other words, there is a qualification expressly provided for under Article 40(1) of the federal constitution.
He illustrated that under Article 150, the king has the absolute discretion to proclaim an emergency as it is for the king and the king only to be satisfied that a grave emergency exists and there are threats to security, economic life, or public order.
“In other words, the king is not compelled to proclaim an emergency just because His Majesty had been advised by the cabinet to do so.
“This is clear when the king declined to proclaim an emergency in October 2020 when it was proposed by the prime minister,” Rajan said. – The Vibes, 30 July, 2021
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