AG: Cabinet to decide when Parliament will reconvene, as Agong only acts on Cabinet’s advice under Constitution

(MMO) – The Cabinet is the one that determines when both houses of Parliament would meet, as the Yang di-Pertuan Agong’s constitutional power to summon for Parliament to meet is at the Cabinet’s advice, the attorney general said today.

In a statement today, Attorney General Tan Sri Idrus Harun sought to clarify the legal position under the Federal Constitution regarding the Agong’s constitutional functions.

“Therefore, in line with the Yang di-Pertuan Agong’s power to summon Parliament to meet, which is carried out according to the Cabinet’s advice, the meeting dates for the Dewan Rakyat and Dewan Negara are also determined by the Cabinet,” he concluded.

Responding to public views regarding the Agong’s powers to summon for Parliament to reconvene and his obligation to act on the Cabinet’s advice, the attorney general had earlier in the statement highlighted two constitutional provisions, namely Article 40(1) and Article 40(1A).

He explained that these two constitutional provisions, among other things, provides that the Agong while exercising his constitutional functions or functions under federal law, is to accept and act in accordance with the Cabinet’s advice or the advice of a minister acting under the general authority of Cabinet, except otherwise provided by the Federal Constitution.

The attorney general said the King’s position as a constitutional monarch who has to act according to advice given by the Cabinet was based on the Federal Constitution’s Article 39, Article 40 and Article 43.

He noted that Articles 39 and 40 vest the country’s executive authority in the Agong to be exercised by himself, the Cabinet or any minister authorised by the Cabinet, while Article 43 requires the Agong to appoint a Cabinet to advise him in the exercise of his functions.

The attorney general also cited the Reid Commission’s 1957 report on the federation of then Malaya that also spoke of the position of a constitutional ruler required to act on ministers’ advice for executive action.

The attorney general further said that the Agong’s role as a constitutional monarch as voiced by those drafting the country’s constitution was also consistently recognised in the courts through multiple court cases decided by the Privy Council, the Federal Court and the High Court.

Citing a 1975 High Court decision which said the Agong remains as a constitutional monarch constitutionally-bound to act on the Cabinet’s advice despite Emergency rule which passes legislative power from the Parliament to him, the attorney general said the King’s position under the law remains unchanged although the Proclamation of Emergency had been declared in Malaysia.

The attorney general also elaborated on the findings in two other court cases in 1979 and 2001 regarding the Agong’s constitutional monarch role and how his functions under the Constitution are to be exercised according to the Cabinet’s advice and not on his own initiative or on his own personal discretion.

While noting that the Federal Constitution’s Article 55(1) provides for the Agong’s powers to summon Parliament to meet, the attorney general said this provision has been suspended throughout the Emergency via the Emergency (Essential Powers) Ordinance 2021’s Section 14(1)(a).

As for Section 14(1)(b) of the same Emergency ordinance, the attorney general said it states that the Agong shall summon Parliament on a date as he “thinks appropriate”, before going on to reiterate that the Agong is required to follow the Cabinet’s advice or a Cabinet-authorised minister’s advice when carrying out his constitutional functions of calling for Parliament to reconvene.

The attorney general went on to cite two other provisions in the same Emergency ordinance — Section 17 and Section 18 — which he said meant that nothing in this Emergency ordinance excludes the constitutional monarch principle enshrined under the Federal Constitution from applying.

Section 17 states that while the Emergency is in force, powers given under the Emergency ordinance are additions to powers given under any other written laws and not derogation of the latter powers. Section 18 states that the Emergency ordinance’s provisions shall prevail against any conflicting or inconsistent provisions in any other written law.

As for the Cabinet’s powers to advise the Yang di-Pertuan Agong on summoning Parliament to meet, the attorney general said that standing orders of both the Dewan Rakyat and Dewan Negara provide that the leader or deputy leader of the house of Parliament (namely the prime minister or the deputy prime minister) shall determine the dates on which the house shall meet at least 28 days before the session starts and that they may also vary the dates fixed from time to time.

He was referring to the standing order 11(2) of the Dewan Rakyat’s standing orders and standing order 10(2) of the Dewan Negara’s standing orders.

He then concluded by saying that it is the Cabinet that will determine when the Dewan Rakyat and Dewan Negara meet.

Earlier today, the Dewan Negara president Tan Sri Rais Yatim and Dewan Rakyat Speaker Datuk Azhar Azizan Harun had in a joint statement proposed for a special Parliament meeting to be held in early August to pave the way for a hybrid Parliament, and said that a hybrid Parliament is expected to be possible around late August or in the first week of September at the very latest after the necessary preparations are carried out.