Friday, February 8, 2013

Emergency powers of the monarch by Shad Saleem Faruqi - The STAR

A caretaker government’s advice on emergency proclamation is not binding on the Yang di-Pertuan Agong.
THIS column had on Jan 10 noted that the last date for the Dewan Rakyat’s dissolution is April 27; a general election must be held on or before June 26; and the next Parliament must be summoned on or before Aug 25.
This is presuming and praying that no emergency under Article 150 intervenes to suspend the general election or postpone the summoning of Parliament.
In response to the Jan 10 article, some readers have raised enthralling questions of constitutional politics.
First, can the Yang di-Pertuan Agong act on his own initiative to proclaim an emergency even if the Prime Minister does not so advise?
Second, if a PM, who fears defeat at the general election, improperly advises the King to declare an emergency and to postpone the elections, is the monarch bound by this advice or is it constitutionally permissible for him to refuse his premier’s counsel?
Third, is the King’s exercise or non-exercise of emergency power subject to challenge in the courts?
Subjective language: Article 150 states that “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”.
A literal interpretation of Article 150(1) appears to indicate that the proclamation of an emergency is within the sole discretion of the Yang di-Pertuan Agong and is within the subjective powers of the monarch under Article 40(2).
Article 40(2) states that the Yang di-Pertuan Agong may act in his discretion in the performance of three enumerated functions, namely appointment of the PM, dissolution of Parliament and convening of the Conference of Rulers, plus “in any other case mentioned in this Constitution”.

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