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“Agong can constitutionally refuse to assent to extension of Emergency” – Lim Kit Siang

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Media Statement by DAP MP for Iskandar Puteri in Kuala Lumpur on Friday, June 25, 2021

The Yang di Pertuan Agong can constitutionally refuse to assent to any extension of the Emergency beyond August 1 under the Malaysian Constitution and respecting the conclusions of the Conference of Rulers special meeting on June 16

We are seven weeks away from a full-blown constitutional crisis never seen before in Malaysian history.

There are no signs that the Cabinet is prepared to accept the two conclusions of the Conference of Rulers special meeting on the Covid-18 pandemic on June 16, 2021 – firstly, that Parliament and the State Assemblies meet “as soon as possible, and in the case of Parliament, before August 1, 2021; and secondly, no need for any extension of the emergency beyond August 1, 2021.

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There was no emergency Cabinet meeting following the Conference of Rulers special meeting nor any indication after the weekly Cabinet meeting on Wednesday, 23rd June 2021 that Parliament will meet before August 1 and that emergency will not be extended after August 1, 2021.

The two PAS Ministers who floated the balloons that the phrase “as soon as possible” meant by the Conference of Rulers special meeting was in line with the Prime Minister’s National Recovery Plan where Parliament could meet in September or October if the country falls into Phase Three of the exit plan if three conditions are met appear to be acting on the directives from Seri Perdana.

What would happen if Parliament is not convened before August 1 and the Prime Minister advises the Yang di Pertuan Agong to extend the emergency beyond August 1, 2021?

Can the Yang di Pertuan Agong refuses to promulgate the continuation of the emergency as he once did last October?

I agree with one of the nation’s leading constitutional law experts, Tunku Abdul Rahman chair and constitutional law professor Shad Saleem Faruqi, that the Yang di-Pertuan Agong acts on the advice of the prime minister, so long as the office bearer has the support and confidence of the Dewan Rakyat.

In an online lecture titled “Understanding the Malaysian Constitution”, he said this is due to Article 43(4) of the Federal Constitution which says:

“If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.”

He said that while the King largely acts upon the advice of the prime minister, the definition of “prime minister” must be examined.

He said: “Does it mean any person holding the office, or does it mean a person who holds the office and who enjoys the support of the members of the Dewan Rakyat?

“While the Agong is bound by the advice of the ‘prime minister’, the word means a prime minister with a solid base, legitimacy and support in the Dewan Rakyat under Article 43(4) of the Constitution”.

The country’s founding fathers were honourable leaders who never envisaged that there would be a Prime Minister who would resort to the subterfuge of avoiding a “confidence motion” in Parliament and tried to evade the test in Article 43(4) of the Constitution.

I agree with Professor Shad Saleem that in such an event, there is a need to interpret Articles 40(1) and 43(4) in a new light.

Furthermore, the Prime Minister has given an implicit undertaking not to invoke Article 40 of the Constitution when enacting Emergency (Essential Powers) Ordinance 2021 on January 11, 2021 and establishing an independent special committee “to advise the Yang di Pertuan Agong on the continuing existence of the grave emergency threatening the security, economic life and public order of the Federation arising from the epidemic of an infection disease, namely Coronavirus Disease 2019 (COVID-19)”.

As a result, the Yang di Pertuan Agong need not have to act on the advice of the Cabinet or a designated Minister under Article 40(1).

To avoid a full-blown constitutional crisis, the Cabinet should convene Parliament before August 1, 2021.

It has been pointed out that the 28-day notice normally required for the convening of Parliament can be dispensed with under Standing Orders 9(2)(a) and 11(2).

I can still remember the urgent Parliamentary meeting in January 1979 when MPs were given two days’ notice for an urgent parliamentary meeting as a result of the Privy Council decision in London on Teh Cheng Poh case

In July 2014, MPs were given three days’ notice to convene a special meeting of the Dewan Rakyat for one day on the tragic downing of Malaysia Airlines flight MH17.

Both the Teh Cheng Poh Privy Council decision and the tragic downing of MH17 airliner are no comparison to the magnitude and enormity of the Covid-19 pandemic, which has caused more Covid-19 cases and fatalities than China, which had 44 times’ Malaysia’s population, and the devastation of the Malaysian economy and society in the past 18 months with no end in sight.

At the present rate of Covid-19 infection and fatalities, by August 1, we will be knocking on the door to join the “millionaire club of nations” comprising 28 nations with a cumulative total of than a million Covid-19 cases with a toll exceeding 6,000 deaths.

Let us subordinate all our political differences to this existential threat posed by Covid-19 pandemic that this is why I proposed last week for a one or two-year political moratorium to win the war against the Covid-19 pandemic.#

Barisan Nasional MPs have issued a statement that they will not support a motion of no confidence when Parliament is convened.

There are also no plans for the Pakatan Harapan to move any no confidence motion in Parliament.

The Sultan of Johore spoke for all Malaysians when he expressed his sadness that the people are living in hardship, fear and anxiety during the Covid-19 pandemic and his disappointment that until today, the Covid-19 pandemic has yet to be resolved.

Malaysia needs a “Win the War Against Covid-19 Pandemic” (WACOP) coalition government to save the country from the devastation in lives, economic losses and societal damages of the pandemic.

The Prime Minister, Muhyiddin Yassin should overcome his “Parliamentitis” – his fear and obsession about not convening Parliament – and convene Parliament before August 1 which is the clear wish of the Yang di Pertuan Agong and to fulfil the wishes of the Conference of Rulers special meeting on June 16 not to extend the Emergency on August 1.