Constitutional crisis and parliamentary democracy
LETTER | The Malaysian Muslim Youth Movement (Abim) refers to the declaration published by the Attorney General on June 25, 2021. The main content of the declaration revolves around Articles 39, 40 (1) and (1A) of the Federal Constitution concerning the act of Yang di-Pertuan Agong, which would have been limited by advice given by the prime minister and cabinet.
As a rule, in accordance with our system of constitutional monarchy, the procedures and actions of the Agong are based on the provisions of law enshrined in the Federal Constitution.
At the same time, the declaration concerns the oath of office of the Agong, as enshrined in article 37 and part I of the fourth annex of the Federal Constitution, which states that “therefore, with this declaration, we solemnly and genuinely pledge our allegiance to administer justice for Malaysia in accordance with the laws and the Constitution which have been ratified and enacted and which will be ratified and enacted in the future.
The attorney general also explained that the situation during the emergency does not change in the same way as the situation outside the emergency, as Agong’s action is still subject to the opinion of the prime minister. and the cabinet based on the judgment in the case. of N Madhavan Nair v. Government of Malaysia  286.
Abim believes that the role of the constitutional monarch is to defend the rights of the people as well as to preserve the system of checks and balances and the practice of democracy in Malaysia.
Therefore, the actions of the Agong on the advice of the prime minister should be understood as being on the advice of the rakyat, as the prime minister must have the support of the majority of the deputies elected by the people.
In the Federal Constitution, in addition to the concept of constitutional monarch, the principle of parliamentary democracy is the basis of the system of separation of powers enshrined in Chapter 4 of the Federal Legislature in the Federal Constitution.
In other words, if the powers of the Agong can be reviewed through the concept of constitutional monarchy, the powers of the Prime Minister, including the power to advise the Agong, can also be reviewed and limited through the system of parliamentary democracy. .
Although there is an interpretation that the Federal Constitution is now suspended, including a provision that requires the holding of parliamentary sittings in accordance with Article 18 and Article 14 (1) (a) of the Ordinance of Emergency (essential powers) 2021, Article 14 (1) (b) of Emergency Ordinance (necessary powers) 2021 reveals that Parliament is still functioning and is subject to the discretion of the Agong. It stipulates that “Parliament will be convened, prorogued and dissolved on the date that the Agong deems appropriate”.
In other words, the principle of parliamentary democracy is always recognized during the state of emergency and it is up to the Agong to convene a session of Parliament.
From here we can observe the system of checks and balances that must be observed to ensure that the rights of the people can be defended by a combination of the principles of constitutional monarchy and parliamentary democracy, even in the event of a situation of emergency.
The concept of a constitutional monarch cannot exist on its own without the support of the principles of parliamentary democracy.
In fact, the Agong’s action to issue a decree for the parliament to meet immediately is in line with the concept of a constitutional monarchy, which exists to ensure respect for the rights of the people.
At the same time, Article 44 of the Federal Constitution stipulates that the Agong is a component of the Parliament, which underlines the important role played by the Agong in the defense of parliamentary democracy. Article 44 states that “Federal legislative power rests with the Parliament which consists of the Agong and two Houses of Parliament known as Dewan Negara and Dewan Rakyat”.
Thus, by the decree of Agong accompanied by the decree of the Conference of Sovereigns dated June 16, 2021, that Parliament be convened as soon as possible without the opinion of the Prime Minister or the cabinet was an act in accordance with the Federal Constitution. , and does not conflict with the concept of constitutional monarchy and parliamentary democracy.
However, if the power of the Agong to convene a sitting of Parliament in an emergency is subject to the opinion of the Prime Minister or the cabinet, this means that the principle of separation of powers between the executive and the legislature does not. does not apply, and this opens the door to abuses of power by the executive.
This has already been pointed out by Professor Owen Hood Phillips in his book Constitutional and administrative law (1973) who said:
“Political freedom is only found when there is no abuse of power. But constant experience shows us that any man invested with a power is likely to abuse it and to carry his authority as far as it goes … To prevent this abuse, it is necessary by the nature of things that a power is a brake. on another … When the legislative and executive powers are united in the same person or the same body, there can be no freedom. Again, there is no freedom if the judiciary is not separate from the legislature and the executive … There would be an end to everything if the same person or body, noble or popular , exercised the three powers. “
Thus, the call of Agong and Malaysian leaders to convene Parliament should not be ruled out on the basis of the question of executive opinion, as this is the only way to ensure control and balance. from the executive in an emergency. , especially since people’s lives are getting worse.
The writer is president of the Malaysian Muslim Youth Movement (Abim).
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