The Monarchy and Article 150

Are the vast emergency powers of the Yang di-Pertuan Agong under Article 150(1) of the Constitution discretionary in nature or subject to prime ministerial advice? Interpretations of Article 150 which oversees the proclamation of an emergency, and Article 40 which stipulates how the Yang di-Pertuan Agong is to act on the advice of Cabinet, resound with importance at this juncture in Malaysia’s history.

The question is also important because, although the 2021 emergency lapsed on 1 August, the Covid-19 crisis continues to rage. Political stability has not been restored. The economy continues to plummet. Some say that a new Emergency Proclamation is needed to set up a National Recovery Council along the lines of the 1969 National Operations Council to provide a stable unity government till the next General Election.

What will be the constitutional role of the King if such a move is contemplated? The language of clause (1) of Article 150 is very subjective: ‘If the Yang di-Pertuan Agong is satisfied that a grave emergency exists … he may issue a Proclamation of Emergency.’  It will be a serious error to read Article 150(1) literally or in isolation. Article 150(1) must be read in the light of Article 40(1), which requires the King to ‘act in accordance with the advice of the Cabinet … except as otherwise provided by this Constitution’.   

In a string of court cases, it has been ruled that emergency powers are subject to Article 40(1). In Teh Cheng Poh (1979), there is this telling statement from the Privy Council that when the Constitution or federal law confers powers upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is ‘of opinion’ or ‘is satisfied’, the reference to his opinion or satisfaction is, in reality, a reference to the collective opinion or satisfaction of members of the Cabinet.

However, this view is rejected by a large section of the political class which believes that though the King is a constitutional monarch, generally bound by advice, in situations of emergency the King can act on his own. This assertion is anchored partly in law, partly in political facts.

First, it is asserted that Article 40(2) permits royal discretion in three enumerated areas – namely, to appoint the Prime Minister, to withhold consent to dissolve Parliament, to convene a meeting of the Conference of Rulers, plus “in any other case mentioned in this Constitution”.  To the “royalists”, the subjectively phrased emergency power of Article 150(1) falls within the category of “any other case mentioned in this Constitution”.   

In reply, it can be pointed out that “any other case mentioned in this Constitution” must mean any other case explicitly mentioned in the Constitution. In the Singapore case of Lee Mau Seng (1971), in relation to a security legislation impinging on the right to see a lawyer,   it was held that restrictions must be clear in the legislation. This implies that inconsistencies with the Constitution must be express, not implied.

Second, Article 150(6) provides that an Emergency Ordinance under Article 150(2B) is not invalid even if it violates the Constitution. The ‘royalists’ argue that during an emergency, Article 150 overrides Article 40 (which lays down the duty to act on advice). In reply, it must be pointed out that emergency rule does not automatically suspend any law or institution unless the intention is clearly expressed. Perhaps an example of such a clear intention is in the Emergency Ordinance of 14 January 2021, which in Section 2 establishes an ‘Independent Special Committee’ appointed by the King to advise him on the continuing existence of the grave emergency arising from Covid-19.

Third, there is a lesson from history. In 1983, then Prime Minister Dr Mahathir Mohamad pushed through Parliament a constitutional amendment of Article 150(1). This effectively obligated the Yang di-Pertuan Agong: ‘If the Prime Minister is satisfied that a grave emergency exists, he shall advise the Yang di-Pertuan Agong accordingly and the Yang di-Pertuan Agong shall then issue a Proclamation.’ This amendment elicited strong opposition from the Conference of Rulers and was repealed in early 1984 in an episode that underscores the view that emergency powers under Article 150 are personal to the King.

Clearly, there remains much debate over the King’s emergency powers, fuelled further by the recent stand-offs between the Crown and Cabinet, in which many perceive the Monarch, ironically, as redeeming Malaysia’s democracy.

Fourth, there have been many incidents of royal assertiveness during the 2021 emergency. In October 2020, the King refused the PM’s advice to proclaim an Emergency. The refusal was not challenged in a court of law by the Prime Minister and sets a political precedent of the throne supplying a check and balance against the political executive’s use of emergency powers.

Clearly, there remains much debate over the King’s emergency powers, fuelled further by the recent stand-offs between the Crown and Cabinet, in which many perceive the Monarch, ironically, as redeeming Malaysia’s democracy.

Since June 2021, the King and the Conference of Rulers were publicly urging a reluctant Prime Minister to convene Parliament to enable legislators to scrutinise the Emergency Proclamation and six Ordinances.

On 22 July, the King refused the PM’s request to sign an Order to revoke six Emergency Ordinances on the ground that the better course was to allow Parliament, which was meeting in four days, to annul the Ordinances. When the Law Minister asserted in Parliament that the Ordinances had been revoked by the Cabinet, the Palace issued a very firm rebuke.      

Though court decisions are clear that emergency powers are subject to ministerial advice, many events of the 2021 emergency illustrate royal activism in times of crises. It is believed that the sunset clause in the January 2021 Proclamation (which sets an end date to emergency) was at the insistence of the King. The Emergency (Essential Powers) Ordinance 2021 provided for an Independent Special Committee to advise the King on the Covid-19 emergency. The Committee met the King many times without any members of the Cabinet present. Many State Assemblies, suspended due to the emergency, relied on Section 15 of the Ordinance to resume their sitting with the King’s permission. From June 2021 onwards, the King and the Conference of Rulers publicly expressed concern about Parliament not being convened to scrutinise the Proclamation and the Ordinances under Article 150(3). In July, the King administered a severe, public rebuke to the Law Minister for misleading Parliament. The King’s defence of the Constitution earned him much praise from the public and may have contributed to the increasing unpopularity of the government.

Time will tell whether the resurgence of the monarchy will continue or whether this is a temporary response to exceptional circumstances. If, in the future, the political executive goes to the courts to challenge royal assertiveness, Article 150(8) may stand in the way. Article 150(8) states that: ‘Notwithstanding anything in this Constitution, the satisfaction of the Yang di-Pertuan Agong mentioned in Clause (1) and Clause (2B) shall be final and conclusive and shall not be challenged or called in question in any court on any ground’. This Article was inserted into the Constitution in 1981 to prevent citizens from challenging the exercise of emergency powers. For political executives eyeing such challenges in the future, Article 150(8) might now have become a poisoned chalice.

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