by Shanmuga Kanesalingam
Published October 25, 2020
Article first published in LinkedIn on 24.10.2020.
The Prime Minister and members of the Cabinet apparently met with the Yang di- Pertuan Agong (“YDPA”) recently. The country is facing a large increase in the number of people infected and suffering from Covid-19 in the current global pandemic.
The supply bill to authorize and fund the government for 2021 (which we call the Budget) has also not been passed yet. The current administration apparently do not think they have the votes to pass the budget.
So, the Cabinet has apparently given “various options” to our constitutional monarch, including recommending a Proclamation of Emergency.
Article 150 of the Federal Constitution allows a proclamation of Emergency over the whole or parts of the Federation to be made by the Agong when he is “satisfied” that a “grave emergency exists whereby the security, or the economic life, or public order” in the whole or a part of Malaysia is “threatened” or “imminent”.
See Article 150 (1):
150. (1) if the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.
Where the Constitution permits interference with fundamental liberties because of public health concerns, it expressly says so. Thus, Article 9 (that guarantees the right of free movement) can be restricted on public health grounds which is why the MCOs and CMCOs we have faced, made under the Prevention and Control of Infectious Diseases Act 1988, are probably constitutional. Similarly, Article 11 that guarantees freedom of religion is subject to any general law protecting, among other things, “public health”.
So, the pandemic is not a valid ground under the Constitution for a declaration of Emergency, where legislative and executive action can be taken to curtail almost all our fundamental liberties.
If the current administration say they cannot pass the Budget, this does not mean that there is a threat to the economic life of the country. Indeed, news reports say that the current administration expressly wants economic activities to continue under the Emergency. The Cabinet just wishes to stop “political activities”. There is clearly an improper motive behind the suggestion of an Emergency.
As will be seen below, there are many mechanisms and methods available to pass a Budget. For now, it is purely speculation that it would be impossible for Parliamentarians to agree to a budget. They haven’t even been given a chance to try and come to an agreement.
We should also recall that these same Members of Parliament, despite there being no coalition commanding a two-thirds majority in Parliament, could agree to amend our Federal Constitution allowing Malaysians to vote when they turn 18, instead of waiting till they are 21. We should let the MPS try to come to an agreement again.
With some notable exceptions dealt with below, Article 40 (1) of the Federal Constitution states that every action taken by the YDPA as a constitutional monarch is done on the advice of the Cabinet:
40. (1) in the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall 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 this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.
Thus, though Article 150 talks about the satisfaction of the YDPA, the decision to make a Proclamation of Emergency is, arguably, really the decision of the Cabinet.
Amendments to the Constitution were made in the late ’70s and early ’80s, to state that the Agong’s satisfaction when proclaiming an Emergency could not be challenged in Court. Shukri Shahizam persuasively argues that, despite this, a Court could (and I would say, should) overturn such a proclamation if it was ever made in these circumstances.
However, here, we should note that the Cabinet has apparently not yet advised the YPDA to make that dire Proclamation. “Options” have instead been given. Tuanku, therefore, presumably has room to consider the following points.
The Cabinet’s decision is essentially an admission to the YDPA that the current administration has lost the confidence of a majority of the members of the Dewan Rakyat.
Article 43 (4) is thus clear that the Prime Minister must resign, unless he “requests” the YDPA to dissolve Parliament and the YDPA agrees to this.
You will recall that I earlier said the YDPA must act on the advice of the PM in all his actions. There are some exceptions to this. The YDPA can act in his personal discretion (subject to constitutional conventions) in three matters:
the appointment of a PM;
in deciding whether or not to dissolve Parliament; and
in matters affecting Malay custom or His Majesty’s royal privileges.
Given that the Cabinet has conceded they cannot pass a budget, they must resign. It is the only constitutional option they now have.
If the PM has requested the Agong to dissolve Parliament, the YDPA is not bound to follow such a request. Dissolving Parliament means a general election. There are valid public health concerns against doing this now.
The YDPA has another choice: He can invite some other person to form a government.
Our Constitution caters for the likelihood of a minority government. A PM does not have to command confidence; instead, the YDPA appoints the person he considers most “likely” to command such confidence.
Parliament must be summoned urgently to start work again. Additional restrictions can be imposed on Parliamentarians pursuant to the laws in place to control infectious diseases.
A viral meme is already circulating, suggesting that the only lockdown ought to be one that involves MPs. I see no reason why MPs should not be quarantined, and only be allowed to attend their Ministerial offices (f any) and Parliament while in session.
MPs should amend their Standing Orders to permit themselves to convene by video. I do not think the Constitution requires a fixed physical place to be constituted as the Parliament. The members of Parliament can in my view meet anywhere.
From a practical standpoint, youth from across Malaysia have recently shown that there is nothing that stops a purely ‘Digital Parliament’ from being a meaningful place to debate matters of policy.
Senator Liew Chin Tong has written about some mechanisms available for a budget to be approved. Political parties can enter “confidence and supply agreements”, that ensure support for budgets and confidence votes. Other matters are voted on case by case. Bipartisan committees of the Dewan Rakyat can be formed to debate and negotiate the budget prior to its announcement on the floor of the House.
Indeed, budget negotiations are a regular feature of US public life, and the US remains one of the strongest economies in the world.
An Emergency cannot be declared for public health reasons. But, luckily, there are many other options available to the country other than the extremes of Emergency rule or a General Election.
We must cope with the pandemic utilizing the tools available to us, made so much easier with the advances in modern technology.
Expediency is no excuse for an Emergency.