KUALA LUMPUR: The Cabinet has the final say as to when Malaysia should reconvene the Parliament.
Attorney-General Tan Sri Idrus Harun said as provided under the Federal Constitution, the Yang di-Pertuan Agong shall receive and act in accordance with the advice of the Cabinet, or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by the Constitution.
He said this in a statement today to clarify concerns surrounding Agong's decree on June 16, calling for the Parliament to be reconvened "as soon as possible".
Following this, various parties have expressed their views on the King's power and his duty to act on the advice of the Cabinet as per the Federal Constitution.
Idrus cited Article 39 and Article 40(1) and 40(1A) of the Constitution which specified that the King's authority was limited to certain matters, one that does not include dictating when Parliament should convene, and that His Majesty must act on the advice of the Cabinet.
"The provision should also be read in conjunction with Article 43 of the Federal Constitution, which requires His Majesty to appoint a Cabinet of Ministers to advise His Majesty in the performance of his functions.
"This is explained in the Report of the Federation of Malaya Constitutional Commission, 1957) in paragraph 58: 'The Yang di-Pertuan Besar will be the Head of the State (Art. 27), but he must be a constitutional Ruler. He must therefore act on the advice of his Ministers with regard to all executive action...".
Idrus also cited past cases outlining the judgement in regards to Article 40(1) and (1A).
Among the cases were Teh Cheng Poh v. PP [1979] 1 MLJ 50; N Madhavan Nair v. Government Of Malaysia [1975] 2 MLJ 286; and Abdul Ghani Ali v Pendakwa Raya [2001] 3 MLJ 561.
"The King's position as mentioned in the cases has not changed although the Proclamation of Emergency has been declared," he said in citing an excerpt of judgment by YA Judge Chang Min Tat in the N Madhavan Nair's case.
In Teh Cheng Poh v. PP [1979] 1 MLJ 50, Idrus said in considering Article 150 (2) whether the King's has the legislative power to abolish ordinances if he is satisfied that there are circumstances that make it necessary to do so, the Privy Council had said this also lies with the Constitution.
Idrus said in Abdul Ghani Ali v Pendakwa Raya [2001] 3 MLJ 561, the Federal Court ruled that the King must act on the advice of the Cabinet as provided in Article 40 of the Constitution.
He noted that Article 55 (1) of the Constitution grants the King the power to convene Parliament, however it has no effect under paragraph 14 (1) (a) of the Emergency Ordinance.
"In his position as the Constitutional Monarch, the King's power to convene Parliament shall be carried out on the advice of the Cabinet or the advice of a Minister as per Articles 40 (1) and (1A) of the Constitution.
"Subsection 14 (1) of the Emergency Ordinance should be read along with other sections of the Ordinance such as sections 17 and 18."
Based on sections 17 and 18, Idrus said paragraph 14 (1) (b) or any provision in the Emergency Ordinance does not exclude the provisions of the Constitutional Monarchy principle enshrined in the Federal Constitution, especially Article 40 (1) and (1A) of the Constitution.
He said regarding the Cabinet's power on advising the King to convene Parliament, according to rules the Head or Deputy Head The Council (Prime Minister or Deputy Prime Minister) shall set, at least 28 days before the beginning of each term, the dates the Council will meet in a term and the head or deputy head may change the date fixed.
"Therefore, in line with the King's power to call for Parliament to convene done in accordance with the Cabinet's advice, the dates of meetings of the Dewan Rakyat and Dewan Negara are also determined by the Cabinet."