The face of the moon was in shadow
Justice Raja Azlan Shah’s dictum in Loh Kooi Choon (1977): “The Constitution is not a mere collection of pious platitudes. It is the supreme law of the law embodying 3 basic concepts… (1) non-derogable individual fundamentalrights; (2) federalism; and (3) constitutional separation of powers.”
Prof. Judge (Dr.) Navin C Naidu, LL.D (Switzerland), KC ( African Kingdoms)
Email: chiefjudge@secamtektektribe.org
Tel: +41 76 493 3031 / +41 43 543 2273 (Switzerland) / Tel: 60 10 959 5755 (Malaysia)
[1] Article 39 Federal Constitution (hereinafter, “FC”) is without equivocation, and unambiguous, that the executive authority of the Federation shall be vested in the Yang di-Pertuan Agong (hereinafter, “YDPA”). Thus said, executive authority is constitutionally not in the hands of an unelected prime minister. Article 43 (2) FC places an abundant amount of caution and care upon the YDPA to “first appoint as Prime Minister (Perdana Menteri) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House . . .” Notice the inexorable fact that the prime minister is appointed, never elected.
[2] Therefore, constitutionally, if the YDPA exercises his Royal judgment and discovers that no elected MP measures up, then there is no (constitutional) need to appoint a prime minister. This is further fortified and amply buttressed by Article 40(2) FC which proclaims that “The YDPA may act in in his discretion in the performance . . . (a) of the appointment of a Prime Minister.” Therefore, “his discretion” is no different from “his judgment” in semantics, syntax and tautology. Vested executive authority is not to be taken lightly in matters relevant to parliamentary democracy. Most assuredly, under the FC the YDPA is not a ceremonial figurehead.
[3] Article 40(3) FC further stresses the point of the YDPA’s vested executive authority of the Federation. “Federal law may make provision for requiring the YDPA to act after consultation with or on the recommendation of any person or body of persons other than the Cabinet in the exercise of any of his functions . . .” Clearly, the YDPA need not constitutionally “act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet . . .” under Article 40(1) FC. Notice there is no mention of the Prime Minister. And, most importantly, which specific federal law is in existence that mirrors the supreme law embodied in Article 40(3) FC? Equally important is whether a federal law can and should subjugate, substitute, and subsume the supreme law of the land.
[4] YAB Rakyat must spend quality time reading, understanding and knowing Article 39, 40 (2) and (3) FC to accept that the executive authority of the Federation is in the hands of the YDPA (Article 39 FC). The implied irrelevance of a prime minister is abundantly clear. Let’s say 15 political parties win 222 seats in the Dewan Rakyat with no clear majority forcing an unconstitutional coalition government. Elected MPs and Aduns have their Standing Orders and the Federal Constitution as guidelines, user manuals, boundary markers and watchtowers. YAB Rakyat did not vote for a political fixer, avenger, and manipulator in the person of an all-powerful prime minister who has waited years to flex his political muscles. Remember the time when UMNO President and Deputy President extra-constitutionally became Prime Minister and Deputy Prime Minister when the Alliance/Barisan Nasional won two-thirds of the seats in the Dewan Rakyat?
[5] The Dewan Rakyat Speaker being the Head of the Federal Legislature further proves the irrelevance of a prime minister. 222 MPs make laws under the Speaker’s watch, and the YDPA (executive authority) enforces them with the existing civil service agencies and departments. Why give a second tier of power to a prime minister when such power is in the hands of the YDPA under the FC being that it is still the supreme law of the land as enunciated in various Federal Court decisions since Loh Kooi Choon (1977).
[6] So, this fuss, fear, fortitude, and fury about becoming the prime minister is nothing but trying to fill a constitutional vacuum given the constitutionality of the judgment and discretion of the YDPA. Even the position of a deputy prime minister is irrelevant except if the Cabinet is in dire need of positions and titles especially when an elected MP becomes prime minister and finance minister!! So, the prime minister takes two Oaths – one as prime minister, and one as finance minister? Ludicrous, right?
[7] Lest we forget, the YDPA has the power to sue or be sued according to Article 182(2) FC underscoring the crucial role that can be played by the Special Court. Executive authority is unequivocally explained in Article 182(7): “The YDPA may, on the advice of the Chief Justice, make such rules as he may deem necessary or expedient to provide for the removal of any difficulty or anomaly whatsoever in any written law or in the carrying out of any function, the exercise of any power, the discharge of any duty, or the doing of any act, under any written law, that may be occasioned by this Article; and for that purpose such rules may make any modification, adaptation, alteration, change or amendment whatsoever to any written law.
[8] Such is the power and authority of the YDPA enunciated in Article 182(7) FC to even silence and subjugate the Legislature, Judiciary, and that of the perceived power and authority of a prime minister. YAB Rakyat, including students in secondary and tertiary educational institutions must memorize Article 182(7) for all the right reasons and purposes. The right and proper exercise of executive authority can be most effective for YAB Rakyat when it is reposed in the right hands far, far away from amok politics, hidden hands, and sinister agendas like we are feeding an insatiable beast (read: Deep State).
[9] Too much power in one pair of hands is an abomination in any nation practising, or said to be practising, democracy. “Power corrupts; absolute power corrupts absolutely,” has become a trite quote. Nobody pays attention to this wisdom afforded by Lord Acton. President Trump tried to trump congressional power under Article 1, section of the U.S. Constitution which the U.S. Supreme Court negated in a 6-3 decision. Power can be deadly in the wrong hands. Since 1957 the YDPA and the Conference of the Rulers were spared the convening of the Special Court for malfeasance, misfeasance and non-feasance. That speaks volumes for Malaysian Royalty – a far cry from turbulent Indonesia in 1945-1946.
[10] The Special Court came into being as a constitutional amendment on 30 March 1993 (Act A848) to remove the legal immunity of the Malay Rulers, But Article 181 (Saving for Rulers’ sovereignty, etc.) FC was left unaffected and intact as a constitutional affirmation of the legal immunity for the Malay Rulers. The Reid Commission may have inserted it under the floodlights of rex non potest peccare (Latin) – the King can do no wrong. Ultimately, YAB Rakyat must demand reform and change with a unified voice to salvage and save our beloved homeland.
[11] It’s doubtful YAB Rakyat would doubt and debate the executive authority of the YDPA and that of the nine Rulers. And this is a good thing without the weary general elections which should be only about electing lawmakers not lawgivers. For 22 years, one prime minister became immune to the rule of law because he decided to “do it his way.” YAB Rakyat was silenced – temporarily – until the man decided to call it a day in 2003. It would have been acceptable if he was a humanitarian dictator. But karma had other plans as it usually does.
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