Power To Call For Parliament With PM & Cabinet, Not Agong, Says Constitutional Lawyer
Even the statement from the Palace appears to acknowledge this as it states “When the YDPA sees fit based on the advice of the Prime Minister”.
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Only the Prime Minister and the Cabinet has the power to reconvene the Parliament, not the Yang di-Pertuan Agong (YDPA), according to lawyer, Lim Wei Jiet.
Citing the Federal Constitution, Lim said that although Article 55 states that “the Yang di-Pertuan Agong shall from time to time summon Parliament and shall not allow six months to elapse,” the King can only act on the advice of the Prime Minister or the Cabinet as stated in Article 40(1A).
He also mentioned in a blog post that there are only 3 specified exceptions to this rule, whereby the YDPA is able to exercise his own discretion as listed in Article 40(2):
- the appointment of the PM
- withholding consent for a request to dissolve Parliament
- requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses
Although the YDPA may act on his own discretion, according to Article 40(2), Lim said that the phrase “in any other case mentioned in the Constitution” is written after the Article, which means that it’s for “any other case that are explicitly mentioned” – a view which he shares with Universiti Malaya’s (UM) Datuk Prof Dr Shad Saleem Faruqi.
For example, Article 139(4) which states that members of the Public Services Commission shall be appointed by “the Yang di-Pertuan Agong in his discretion but after considering the advice of the Prime Minister and after consultation with the Conference of Rulers…”.
Constitutional Lawyer Lim Wei Jiet
What about the current Emergency
Lim mentioned that although there are those of the view that the Emergency (Essential Powers) Ordinance 2021 – in particular Section 14 and Section 18 – delegates the power to reconvene Parliament to the YDPA himself, he countered this argument by saying that it doesn’t work that way.
He said that Section 14 doesn’t nullify Article 40(1A) of the Constitution and added that similarly worded provisions under the Constitution exists, but it has always been understood that the YDPA will act on the advice of the PM in each of such instances.
If such an opinion holds weight, he said, it would create an illogical and unwholesome state of affairs in Executive governance during the Emergency.
Under the same Ordinance, the YDPA is phrased to have the power to take temporary possession of property (Section 3), demand the use of resources from private entities (Section 4) and to make regulations to give into effect the Ordinance (Section 16). Surely, such powers are not meant to be exercised by the YDPA himself using his own discretion? Clearly, it is the PM/Cabinet which exercises such executive functions. All of such powers under the Ordinance were enacted with Article 40(1A) in mind – and Section 14 is no exception.
Constitutional Lawyer Lim Wei Jiet
The last point that he made was the acknowledgment from the YPDA that Parliament can only be summoned by His Royal Highness upon the advice of the PM.
Paragraph 3 of the Palace’s statement dated 24th February 2021 (issued after the Ordinance in January 2021) is self-explanatory = “sebagaimana yang difikirkan sesuai oleh Seri Paduka Baginda atas nasihat Perdana Menteri”
Constitutional Lawyer Lim Wei Jiet
Or in English: “When the YDPA sees fit based on the advice of the Prime Minister”.
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