Putting into perspective the Agong’s powers under the constitution

Shad-Saleem-Faruqi-istana-negaraBy Shad Saleem Faruqi

I write to clarify V Anbalagan’s story on FMT yesterday, “Academic questions right of ex-CJ to advise King”.

The report is a serious, though unintentional, misrepresentation of what I said. The first paragraph of your story is also likely to mislead.

It reads: “A law expert has joined other legal minds and lawmakers in questioning if a former Chief Justice could advise the Yang di-Pertuan Agong on the appointment of additional judges to the Federal Court”.

I never alleged that Tun Ariffin was an “ex-CJ” or a “former Chief Justice” when he advised His Majesty on the appointment of Additional Judges. Tun Ariffin submitted his advice while he was still gracing the post of CJ.

He acted under Article 122(1A) which explicitly permits the Chief Justice to advice the King on the appointment of Additional Judges.

However, as his advice was prospective in nature, to take effect after his retirement, that raises six fascinating issues of constitutional interpretation which I outlined but did not comment on because they require “a separate and fuller discussion”.

However, there was one extremely significant and over-arching issue of constitutional monarchy on which I gave a comment. That was whether the Yang di-Pertuan Agong’s power under Article 122(1A) to appoint Additional Judges is a discretionary power or whether the Prime Minister’s legal right under Article 40(1) and 40(1A) to advise the Monarch applies to this situation as well? I had critically examined the contentious view that “the PM did not come into the picture in the appointment of additional judges”.

My view was that though the Constitution and laws confer on His Majesty a magnificent panoply of powers and functions, these provisions should not be interpreted literally.

In our system of constitutional monarchy His Majesty has a general duty under Article 40(1) to “act in accordance with the advice of the Cabinet” save in some situations.

First, in three areas specified in Article 40(2) e.g. appointment of the Prime Minister.

Second, in those areas where it is explicitly mentioned that the King may act “in his discretion”. One example is Article 139(4) relating to Public Service Commission appointments.

Third, in those areas where discretion exists by necessary implication e.g. delaying legislation by 30 days under Article 66.

In all other areas, a sagacious King can caution, warn and delay but must ultimately act on advice.

Due to paucity of time I had reserved my views on the controversies surrounding the extension of the CJ and President of the Court of Appeal.

Your report puts words in my mouth and assumes what my views are. You mix up two separate issues: the role of the CJ under Article 122(1A) and the right of the PM under Article 40(1) and 40(1A).

Dr Shad Saleem Faruqi is Emeritus Professor, Faculty of Law, University of Malaya.

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