—Andrew Harding, Centre for Asian Legal Studies, Faculty of Law, National University of Singapore
As has been previously noted in this blog, Malaysia has been undergoing an unprecedented period of political instability that has tested the interpretation and implementation of many constitutional provisions, especially those relating to the appointment and dismissal of governments.[1] In this process party discipline and coalition discipline appear to have broken down to a considerable extent, and this fluidity in allegiance (to, or even by, political parties) entered a new phase on 23 September 2020 when opposition leader Anwar Ibrahim claimed to have the support of a majority of MPs to trigger a second change of government this year.[2] This political drama continues during a pandemic, and therefore unusual considerations come into play: a state election in Sabah on 26 September 2020 resulted in a large spike of COVID-19 infections in that state.[3] Holding a federal election at such a juncture is widely seen as a dangerous move, and if the government does fall, an election might be the outcome, if a dissolution were requested by Prime Minister and acceded to by the head of state, the Yang di-Pertuan Agong.[4]
Given the potential for further instability and a change of government at what is widely seen as an inopportune moment, the Prime Minister, following a Cabinet meeting on 23 October 2020, made his way to Kuantan in the state of Pahang, where the Yang di-Pertuan Agong, as Ruler of Pahang, was residing at his palace, to request a proclamation of emergency on the ground of a need to maintain stability and confidence in the government while the continuing pandemic was being addressed.[5] Under the Federal Constitution, Article 150, an emergency may be proclaimed in the following circumstances:
(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.
(2) A Proclamation of Emergency under Clause (1) may be issued before the actual occurrence of the event which threatens the security, or the economic life, or public order in the Federation or any part thereof if the Yang di-Pertuan Agong is satisfied that there is imminent danger of the occurrence of such event.
It is common ground in constitutional case law that in being so satisfied in acting under Article 150(1) and (2), the Yang di-Pertuan Agong acts on the advice of the government.[6] Indeed in 1983 an attempt was made to amend Article 150 to ensure that it was clear the power to proclaim an emergency lay in the hands of the Prime Minister, it being feared that the incoming Yang di-Pertuan Agong (who holds office for a period five years, the office rotating amongst the nine traditional Rulers) might, as he had indicated, sow confusion by proclaiming an emergency himself without government advice, and ‘lock up all the politicians’.[7] In the event this attempt, accompanied by an attempt to remove the requirement for royal assent to legislation at federal and state levels, precipitated a full-blown constitutional crisis which was resolved only by a compromise.[8] It is clear therefore that, as a general proposition of constitutional law, this is an instance where the head of state acts on advice rather than acting in his discretion, as would be the case with the appointment of a Prime Minister, for example.[9]
Despite this apparent conformity with ‘Westminster’ conventions in Malaysia, which are entrenched in both the federal and state constitutions,[10] it has been noted that in recent years Malaysia’s nine traditional Rulers have viewed their constitutional role as going beyond the strict terms of the constitution.[11] For example, in 2009 the Ruler of the state of Perak in effect dismissed a sitting Chief Minister as a result of defections amongst assemblymen, even though there had been no vote of no confidence or other triggering event on the floor of the State Legislative Assembly.[12] Similarly, the Yang di-Pertuan Agong earlier in 2020 appointed a new Prime Minister without there being any indication in parliament of a switch in confidence.[13] Many other such acts by Malaysia’s royal heads of state have been noted that do not appear to have any specific constitutional foundation. Nonetheless, research indicates that such actions are not so far objected to by the Malaysian public, even though there have also been instances of criticism of Rulers or royals as going beyond their legitimate powers.[14]
In the instance under scrutiny in this writing, the Yang di-Pertuan Agong received the Prime Minister’s proposal for the proclamation of an emergency, submitted on the grounds that constant parliamentary manipulation (‘politicking’) was making it difficult for the government to concentrate on defeating the pandemic, and the prospect of a general election was worrying in light of election events possibly acting as ‘super-spreaders’ of disease. Instead of simply acting on this, His Majesty summoned what was said to be an informal meeting of the Rulers to discuss it. Following this meeting, His Majesty announced that the proposal was rejected on the basis that it was an unnecessary measure to deal with the pandemic. He also stated that the incessant politicking should stop as this did indeed impede the ability of the government to deal with the pandemic; and he added encouragement to the politicians to pass the annual budget (before parliament at the time of writing).[15] The response from the public and commentators was overwhelmingly positive, and it was said that His Majesty had saved both democracy and the health of the public by rejecting the emergency proposal.[16] It was common ground that an emergency would probably have resulted in the government ruling, and even legislating, without parliament, which would potentially be suspended for the time being, there being no need to convene it for legislative purposes such as passing the budget.[17] This would of course have precluded voting on any no-confidence motion. As matters stand in mid-November there are several motions of no-confidence to be debated and the budget for 2022 has not yet been passed.
This extraordinary episode of the rejection of an emergency proclamation raises difficult questions about the role of the head of state and the conditions for both an emergency proclamation and, more, generally, acting on government advice.
The standard mantra that the Ruler acts on the advice of the executive has resulted in interpretations that are in practice different from the run of Westminster-style constitutions. The cultural logic of what the writer has termed ‘Nazrinian monarchy’[18] means, as has been seen in other instances, that acting on advice may be turned on its head. In Malay protocol ‘advising’ one who is superior in status to oneself, even if one is the head of government, is culturally delicate. Moreover, since the Yang di-Pertuan Agong is simply one of the Rulers taking his turn as federal head of state, and in office for only five years, it is often appropriate (as it was in February 2020 during the government succession crisis) for him to consult his brother Rulers before taking a step that might be seen as controversial or having implications as a precedent for the Rulers and future Rulers. One might of course think that in doing this His Majesty had misunderstood the constitution, which requires him to act on advice tendered by the Prime Minister. However, the transplantation of the customary law of the Westminster political class to a country with a different political and legal culture (the shift, so to speak, from Windsor to Kuantan), inevitably means that such conventions will become embedded in the donee system (even as written law) only by a process of adaptation and application. Such adaptation may well be cultural as well as political in nature, especially when the convention relates to the monarchy system, which in Malaysia is a profound expression of culture and tradition. It remains somewhat unclear at this point whether the royal prerogatives are codified in and therefore limited by the bringing into effect of the Federal Constitution with independence in 1957; or whether they form a continuous tradition, maintained and evolving through, beyond, and consistently with, this event.[19]
If one accepts the situation presented here, then one still has to find a way of explaining it. There are several possibilities.
First, this rejection of advice could be a strictly unconstitutional act that was nonetheless justified by the fact that it maintained democracy and had public support. Needless to say, this view would place the entire constitutional order, including democracy itself, on an uncertain footing, implying moreover that constitutional monarchs may at discretion redesignate themselves as absolute monarchs. Alternatively, if ‘the constitution is what happens’, as JAG Griffith put it,[20] then this event simply happened and was therefore in some sense constitutionally valid.
Secondly, it might be argued that in rejecting the Prime Minister’s advice the Yang di-Pertuan Agong was acting constitutionally because the advice was tendered by a Prime Minister who did not enjoy the confidence of a majority of MPs. This might be analogous to a head of state rejecting a request for a dissolution when the head of government no longer commands the confidence of a majority; there is no obligation to act on the advice of a government that does not command such confidence, as it is in effect no longer the government. This explanation is also problematical. First, the Yang di-Pertuan Agong did not rest his rejection of the emergency on this ground, and it is not at all clear whether the factual condition – the absence of the confidence of a majority – was or is satisfied. Secondly, if it were the reasoning adopted, then it would also necessitate acting on the situation to appoint a new Prime Minister, a consequence that was implicitly rejected, despite the fact that Anwar Ibrahim had presented His Majesty with evidence that he (Anwar) commanded the confidence of a majority of MPs. By asking the government to ‘keep calm and carry on’, His Majesty had, plausibly, implicitly also rejected Anwar’s request to be appointed Prime Minister. This does not preclude debating a no-confidence motion in parliament, or a rejection of the budget, which would have similar effect; but neither of these events has occurred.
Thirdly, one might seek to reconcile the decision to reject the emergency with constitutional government as understood in Westminster systems by regarding the decision as an exercise of reserve powers. This too entails some problems, but seems a more promising explanation than the first two. As we know from the episode of the dismissal of the Whitlam government in Australia in 1975,[21] exercise of reserve powers is likely to be controversial, there being no example in the last couple of centuries of the exercise of such powers in the British system. Nonetheless it is accepted by constitutional writers that such powers do exist, and if so, they would plausibly include refusal to act on advice in extreme circumstances that might include an unconstitutional request by the government to proclaim an emergency.[22] It is difficult, however, to see in what way the request was unconstitutional, except in the loose sense of being inappropriate in spirit in a democratic system, there being no pressing actual need (as His Majesty in fact judged) for a proclamation. I say ‘loose sense’ because the test of whether an emergency falls within Article 150 is known to be a very broad one, encompassing a breakdown in government and the need for special measures to deal with a pandemic[23] (a need already addressed in legislative and administrative actions over a period of nine months, without resort to any special measures). Moreover, the existence of such emergency is expressly not justiciable in the terms of Article 150, which precludes a court ruling to that effect.[24] On this view the question is also raised whether the advice tendered by the Prime Minister was lawful. Although the advice was not apparently rejected on the grounds that it was unlawfully tendered, or that the advice was to act in a way that would be unlawful, one could still maintain that the rejection was constitutionally valid on the ground that it was in effect a statement that the emergency was inappropriate as being unnecessary, which is to say, it did not factually fall within Article 150. His Majesty could easily be forgiven for not couching the matter of rejection in terms that might only be properly understood by constitutional lawyers.
Fourthly, one might explain the rejection of the emergency as consistent with the notion of acting on advice. This looks like a paradox, and yet, in discussing the convention Bagehot famously wrote that the monarch has ‘the right to be consulted, to encourage, and to warn’.[25] On this view the Yang di-Pertuan Agong merely consulted the Rulers informally and communicated their view of the matter. His Majesty had thus been consulted, and had in turn chosen, in the operation of an evolving convention that is in no way contradicted by the text of the Constitution, to consult his brother Rulers, as would be entirely appropriate given the constitutional and cultural assumptions involved in his office. Conceivably also, by presenting His Majesty with a ‘proposal’ (‘cadangan’ in Malay, as opposed to ‘nasihat’, advice) the Prime Minister had not even, formally speaking, advised His Majesty to proclaim the emergency. (This latter argument might not be correct, given that even advice would have to be tendered in a highly respectful manner, consistently with the notion of a proposal, the distinction being clearer in English than it would be in Malay). Moreover, His Majesty had plausibly warned the Prime Minister of the consequences of his (the Prime Minister’s) proposed action, while also encouraging him to proceed in dealing with the pandemic in the context of a stable government with royal and public support, and without an election. Given this response the Prime Minister did not press the matter, but seems to have accepted the dispensation as binding. This explanation would arguably have the advantage of preserving the constitutional integrity of the notion of acting on advice, although it would also throw into some confusion the question when Ruler is to act on advice and when he may not.
Accordingly, it seems the best solution to this conundrum is to recognize that acting on advice is a Westminster concept that may take on a subtly different dimension in an ‘Eastminster’[26] that has its own customary view of relations between Rulers and heads of government. This is not to say that the balance of power, while altered in this particular milieu, is now slewed irrevocably in favour of the Ruler. It is still the case that ordinarily the Ruler will act on the advice of the head of government rather than acting in his discretion. However, the Ruler also has discretion, where on a rare occasion he views the matter as serious enough to imply the need to consult his brother Rulers, to ask the head of government to think again, or, to express this in a different way, to politely and encouragingly reject on ground of necessity a proposal as to how the Ruler should act. We can see this as a reserve power to be exercised rarely and with caution. As Anne Twomey has expressed it, ‘[t]he head of state may have to reply on the principle of necessity to justify the exercise of an otherwise unconstitutional power in order to lead government back to constitutional validity’.[27]
It is of course by means of such subtleties that a constitutional system may, over a period of decades, gradually adapt itself to society’s conception of constitutionality. In the event in this instance what was avoided was a severe restriction of democracy, an election dangerous from a public health perspective, and an instability in government that would not have assisted efforts to bring the pandemic to an end. There will doubtless be opportunity in the near future for the voters to express their view of the rights and wrongs of all this, but one suspects it will be politicians, if anyone, who will be blamed, and not the Rulers.
Suggested citation: Andrew Harding, Acting (or Not Acting) on (Lawful or Unlawful) Advice in Malaysia: From Windsor to Kuantan and Back Again, Int’l J. Const. L. Blog, Nov. 20, 2020, at: http://www.iconnectblog.com/2020/11/acting-or-not-acting-on-lawful-or-unlawful-advice-in-malaysia-from-windsor-to-kuantan-and-back-again/
[1] Andrew Harding and Dian AH Shah, ‘Constitutional quantum mechanics and a change of government in Malaysia’, ICONNECT Blog (2020), <http://www.iconnectblog.com/2020/04/constitutional-quantum-mechanics-and-a-change-of-government-in-malaysia/>, accessed 7 November 2020; ‘Introduction to I-CONnect Symposium: Malaysia Boleh! Constitutional Implications of the Malaysian Tsunami’, ICONNECT Blog (2018), <http://www.iconnectblog.com/2018/06/introduction-to-i-connect-symposium-malaysia-boleh-constitutional-implications-of-the-malaysian-tsunami/>, accessed 12 November 2020.
[2] ‘Anwar says he has the numbers to form govt and King to grant audience’, Free Malaysia Today, 23 September 2020, <https://www.freemalaysiatoday.com/category/nation/2020/09/23/anwar-says-he-has-the-numbers-to-form-govt/>, accessed 7 November 2020. It remains unclear whether this allegation is true, there being no significant event in the lower house indicating a switch in the confidence to Anwar.
[3] ‘Corona virus: Malaysia PM blames Sabah election as among causes of huge infection surge’, South China Morning Post, 6 October 2020, <https://www.scmp.com/week-asia/health-environment/article/3104421/coronavirus-malaysia-pm-blames-sabah-election-among>, accessed 7 November 2020.
[4] See Federal Constitution, Art. 43(4).
[5] ‘Malaysia’s PM Muhyiddin meets King amid talk of emergency declaration’, Straits Times, 23 October 2020, <https://www.straitstimes.com/asia/se-asia/malaysias-pm-muhyiddin-meets-king-amid-talk-of-emergency-declaration>, accessed 7 November 2020.
[6] See Federal Constitution, Article 40; Abdul Ghani Ali Ahmad & Others v Public Prosecutor [2001] 3 MLJ 561. See also Teh Cheng Poh v Public Prosecutor [19801 AC 458, 466.
[7] A Harding, ‘The Rulers and the centrality of conventions in Malaysia’s “Eastminster” constitution’, ch.10 of H Kumarasingham (ed), Viceregalism: The Crown as Head of State in Political Crises in the Postwar Commonwealth (London: Palgrave, 2020).
[8] HF Rawlings, ‘The Malaysian Constitutional crisis of 1983’, 35 International and Comparative Law Quarterly 237 (1986).
[9] Federal Constitution, Article 40(1).
[10] Federal Constitution, Schedule 8.
[11] Harding, above n.7.
[12] Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General, intervener) [2010] 2 MLJ 285
[13] Harding and Shah, above n.1.
[14] Harding, above n.7.
[15] ‘Malaysia’s King rejects PM’s proposal to declare emergency’, The Diplomat, 26 October 2020, <https://thediplomat.com/2020/10/malaysias-king-rejects-pms-proposal-to-declare-emergency/>, accessed 7 November 2020.
[16] ‘Malaysia’s King wins plaudits during political storm’, <https://www.reuters.com/article/us-malaysia-politics-royals-idUSKBN27C1M3>, accessed 7 November 2020.
[17] Article 150(3), (4).
[18] A Harding, ‘Nazrinian monarchy in Malaysia: The resilience and revival of a traditional institution’, ch. 4 of Andrew Harding and Dian A. H. Shah (ed.), Law and Society in Malaysia: Pluralism, Ethnicity and Religion (London: Routledge, 2017).
[19] See contrasting views in RH Hickling, ‘The prerogative in Malaysia’ 17 Malaya Law Review 207 (1975); and AJ Harding, ‘Monarchy and the prerogative in Malaysia’, 28 Malaya Law Review 345 (1986).
[20] JAG Griffith, ‘The political constitution’ 42 Modern Law Review 1 (1979).
[21] P Kelly and T Bramston, The Dismissal in the Queen’s Name: A Ground-breaking New History (Hawthorn: Penguin Australia, 2015).
[22] A Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge: Cambridge University Press, 2018), ch.1; H Kumarasingham, ‘Viceregalism’, ch.1 of Kumarasingham, above n.7, at 1ff.
[23] In Stephen Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 238, at 241–2, Lord MacDermott, delivering the opinion of the Privy Council, held that ‘[a]lthough an “emergency” to be within that article [150] must be not only grave but such as to threaten the security or economic life of the Federation or any part of it, the natural meaning of the word itself is capable of covering a very wide range of situations and occurrences, including such diverse events as wars, famines, earthquakes, floods, epidemics and the collapse of civil government’.
[24] Article 150(8).
[25] A Twomey, ‘From Bagehot to Brexit: The monarch’s rights to be consulted, to encourage and to warn’, The Round Table, 107:4, 417 (2018).
[26] See H Kumarasingham, ‘Eastminster – decolonisation and state-building in British Asia’, in H Kumarasingham (ed.), Constitution-Making in Asia – Decolonisation and State-Building in the Aftermath of the British Empire (Abingdon: Routledge, 2016).
[27] Twomey, above n.22, at 13.
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