Agong should refer power to convene Parliament to Federal Court, AG told PM bound by constitution too, not just King

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Any questions surrounding the constitutional provisions on whether the Yang di-Pertuan Agong requires the cabinet’s advice to reconvene Parliament could be referred to the Federal Court.

Lawyer Mohamed Haniff Khatri Abdulla said the Yang di-Pertuan Agong or Istana Negara could file a petition to the Federal Court and seek a judgement on the matter.

“Under Article 130 of the Federal Constitution, whenever any constitutional question arises on functions that must be defined for the Agong’s interest, the Agong can petition the Federal Court for a judgement with the intention to provide him with guidance as to the constitutional position.

“Therefore, I propose for the palace to take the option under Article 130 to refer this matter for a judgement by the federal court,” said Haniff.

He said this in response to a statement from Attorney-General Idrus Harun earlier today who said the law requires the cabinet to advise the Yang di-Pertuan Agong on when His Majesty is allowed to convene Parliament.

Idrus argued that various cases in the past had established that Article 40(1) and (1A) of the Federal Constitution limited the Agong’s use of discretion to very specific circumstances and the convening of Parliament was not one of them.

Haniff, however, said Idrus’ views were inaccurate as the cited precedents, except for one, did not take into account an amendment to Article 40(1A) in 1994.

Haniff said the amendment effectively meant that Agong was required to act upon the advice of the government in situations where the constitutional provision expressly stated a need for advice.

He also noted that Idrus has a role to advise both the government and the Agong but could appear to be faced with a conflict of interest.

“So, on that ground, the Attorney-General’s statement must be decided on through a direct reference by the Agong to the federal court,” he added.

On June 16, the king and the Conference of Rulers had separately urged Putrajaya to convene Parliament as soon as possible.

The rulers wanted MPs to debate the emergency ordinances and ways of tackling the Covid-19 pandemic.

More than a week later, Putrajaya has not committed to an exact date to do so.

Instead, the speakers of both the upper and lower houses said a “hybrid” sitting – involving in-person and online participation – can take place by the first week of September at the latest.

Meanwhile, former de facto law minister Zaid Ibrahim said the attorney-general cannot disregard the question of the legitimacy of Prime Minister Muhyiddin Yassin’s government when stating that the Agong must act on the advice of the Cabinet.

Zaid said that while the King is bound by the Federal Constitution, the same applied to the prime minister, who must command majority support in the Dewan Rakyat.

“This is something that is being disputed. This very question of whether Muhyiddin enjoys majority support or not, is critical,” he said.

Article 43 of the Federal Constitution, Zaid added, makes clear that the PM is not just an office holder but someone who enjoys the support of the majority in Parliament, and that only if this condition is fulfilled, does the King need to act on his advice.

“We cannot have a government that does not enjoy majority support. It stops becoming democratic. It stops becoming a government of the people. The system simply breaks down.”

Speaking to FMT, Zaid said Idrus must not forget that the declaration of emergency, which saw Parliament being suspended, came at a time when the government’s razor-thin majority was in question after two Umno MPs withdrew support for Muhyiddin.

“It is crucial that Parliament be allowed to reconvene, as soon as possible, and not at the whims and fancies of a government whose majority is in doubt.

“The question of the government’s legitimacy needs to be answered first.”

Meanwhile, Selangor Barisan Nasional information chief, Isham Jalil said the real support for Muhyiddin was unknown and needed to be proven before the King can be asked to act on the advice of a Cabinet he heads.

“If not, it is unfair and wrong for the King to be asked to act on the advice of a prime minister whose legitimacy is in doubt,” he said in a statement.

He added that if a prime minister did not have the support of the majority, the King could also appoint another MP as prime minister.