Was the King wrong in refusing to proclaim an Emergency?

Can the King act against the Cabinet’s advice?

[1]. Two historically significant events occurred on October 26, 2020

First the Cabinet asked the King to invoke His Emergency powers so that it could defeat its lost parliamentary support.

Second, the King said, ‘No’.

[2]. What some jurists argue

They say that the King cannot decline the PM’s advice under any circumstance; that the King must obey the Cabinet; and that he has ‘no discretion’.

We shall call this the ‘Absolute view’.

[3]. We need to address several issues

Let us take it step-by-step. 

A mechanical application of the law without an understanding of its historical development deprives us of the intent and spirit behind it.

So we need to look at:

(a). the historical role and duties of a Constitutional monarchy;

(b). the role and power of the Prime Minister; and

(c). the monarch’s role in Special Cases.

[4]. In a constitutional monarchy, the power to rule is with the People

Malaysia is a good example. 

A true democracy is characterised by free elections. The people govern themselves, through the people’s representatives, established in a House of the People’s Representatives. 

In Malaysia, it is called the Dewan Rakyat. 

The other two organs of government are an impartial Judiciary, and an Executive (often called the ‘government’).

[5]. The monarch cannot rule, or tax, or wage war

In a democracy, the monarch, who merely acts as a ceremonial head, does not interfere with the government. He must – and does – act in accordance with Cabinet’s advice.

[6]. The Cabinet represents the people 

The Prime Minister, as leader of the Cabinet, administers the nation for the people. 

The general principle is this: if in the proper administration of his duties– and note the word ‘proper’ – the Prime Minister advises the King to act in a certain way, then it is the constitutional duty of the monarch to comply with it.

But there is no ‘absolutism’ about it.

[7]. The Absolutists point to Article 40(1):

They argue that article 40(1) requires that the King,

 ‘…shall act in accordance with the Cabinet’s advice’.

Not satisfied with this restriction, in 1994, Mahathir added an extra clause.

If you play Monopoly, you will recognise it immediately: it is a ‘Go to Jail’ card. 

He tried to tighten the absolute obligation in Art 40(1) by adding a new Clause 1A. 

It says:

‘…where [the King] is 

to act in accordance with advice, 

on advice, 

or after considering advice, 

[the King] shall accept and act in accordance with such advice.’

This phrase, in my view, adds no value at all – linguistic or otherwise – to the original, imperative clause that, ‘the King shall act in accordance with the Cabinet’s advice.’ 

But you know, kiasu.

[8]. Back up a bit, and take it slow

True it is that Art. 40(1) removes the monarch’s absolute power. 

The word ‘shall’ leaves no doubt. 

It is compulsory.

[9]. Did you realise that Art 40(1) has a clause that removes the ‘absolute’ powers of both the King and the Cabinet?

It dilutes the position that the King’s must obey the Cabinet absolutely.

[10]. There is an internal contradiction in the constitutional clause – within the very words the ‘absolutists’ depend on: 

And here it is: 

Art 40 (1) states that, 

‘… [The King] shall act in accordance with the advice of the Cabinet… except as otherwise provided by this Constitution…’

[11]. A second clause in Art. 40(2) augments this Exception:

Article 40(2) says that:

‘[the King] may act in his discretion … in any other case mentioned in this Constitution. 

So all you need to look for is a constitutional clause that is not dependent on any advice of the Cabinet.

[12]. The Constitution gives the King some Special Powers

The Federal Constitution allows some special powers to the King. 

So any absolutism in Art. 40(1) have been, in those ‘Special Cases’, notably dissolved.

In those ‘Special Cases’, although the word ‘discretion’ is not used, a substitute is.

It is the phrase ‘the King … may.’

That means the King has a discretion. 

A ‘discretion’ is a right to exercise choice.

The phrase that, ‘Ahmad may leave tonight’, does not mean ‘Ahmad must absolutely leave tonight’. 

He may also decide not to. 

You get the point.

[13]. Proclamation of Emergency is a Special Power

One example of the phrase that ‘[the King] may act in his discretion… in any other case’,  is in Article 150.

Under Article 150, depending on certain circumstances, the King has a discretion in proclaiming – or refusing – an Emergency.

[14]. In deciding whether to Proclaim an Emergency, the King exercises a peculiar constitutional power

Article 150 of the Federal Constitution allows the King to ‘proclaim’ an Emergency if five conditions exist. 

I have written on it earlier. I repeat them here for completion: if you know of it please proceed directly to point [15]. 

First, there must exist, or potentially exist, any one of the 3 identified situations that amount to an ‘Emergency’. 

There must be ‘a threat’ to one of 3 ‘Identified Situations’, i.e. 

(a). ‘a threat’ to national security; or 

(b). ‘a threat’ to economy; or 

(c). ‘a threat’ to public order. 

Second, the situation must be ‘grave’. 

Third, it must be ‘imminent’: i.e. the wolves must literally be at the door. 

Fourth, the King may proclaim an Emergency – and this is the 5th condition –  if the King ‘is satisfied that a grave Emergency exists’. 

[15]. The Constitution dilutes the absolutism in Art 40 in Special Cases 

Under Article 40, the King must do what the Cabinet advises. 

Second, that absolutism is diluted in Special Cases where the King has greater discretion.

So, Article 150 grants the King ‘special powers’ to determine, ‘if he is satisfied’, that ‘a grave Emergency’ exists.

[16]. That is a personal Constitutional discretion

I think you may not disagree if I say that the phrase, ‘if he is satisfied’, must also mean,‘to determine his own satisfaction’.

When the King is ‘to determine his own satisfaction’, he is making a judgement call: it is an almost ‘adjudicatory’ function. 

The King, acting as an Institution, decides.

So it is an Institutional Decision.

There is nothing in Article 150 that forces the King to believe whatever the Cabinet tells him to believe.

Article 150 does not compel the King to be ‘satisfied’ that a ‘grave emergency’ exists just because the Cabinet ‘advises’ him so.

Here is an example: 

Suppose it is a bone dry day. And suppose the Cabinet turns up at the Palace.

They tell the King, 

‘Please declare it is raining cats and dogs’, 

because we want to bring the rescue boats out.

That does not mean: 

(1) it is, in fact, raining; 

(2) that the King, need not exercise his powers of observation, perception or personal investigation; or

(3) the King must agree with the Cabinet; or

(4) that the King is forced to proclaim that it is ‘now raining’. 

Under Article 150, the King has a constitutional duty and power to decide for himself that there is in fact a torrent.

[17]. Then there is a second clue,  in Art. 150

A point that embellishes the King’s personal exercise of power is in these words: 

‘The King ‘may issue a proclamation’. 

The word ‘may’, any judge will tell you, expresses the existence of a ‘discretion’. 

What is a ‘discretion’? 

It is, as we spoke earlier, the right to choose.

[18]. The King can – and should – decline the Cabinet’s request if they act in conflict of the law or their duties

When they made the demand to the King, the Cabinet and the PM either had lost, or were about to lose command of the Dewan Rakyat. 

The Cabinet attempted to seize control to remain in power, without the Dewan Rakyat’s consent.

That is unconstitutional.

To ask the King to Proclaim an Emergency, when the identified circumstances do not exist, placed the Cabinet and the Prime Minister in a state of a conflict of duties. They did it to protect themselves,  not the nation: although they camouflaged it so.

So they did not advise the King correctly.

The Cabinet, as the central organ of the Executive, is accountable to the people, and its representative, Parliament. 

Parliament either does not support them or will soon not do so. 

[19]. As servants of Parliament, and not having procured its steady support, the government lost its Constitutional legitimacy to demand anything of the King

So the King was quite entitled – and legally right – in rejecting the ‘advice’ of the Prime Minister and his Cabinet. 

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