The Agong’s constitutional right to request documents

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It was reported in the news under the heading ‘Don: Agong can unblock attempts to hide 1MDB audit’ wherein constitutional law expert Professor Abdul Aziz Bari said the government was wrong to use an “ordinary law like the Official Secrets Act (OSA) to shut down” a constitutional provision such as the auditor-general’s report.

The learned professor makes reference to Article 106 and 107 of the Federal Constitution. It was reported that the learned professor was of the view that in light of Article 107(1) of the Federal Constitution, the government cannot withhold the auditor-general’s report. His views are to be taken seriously.

Article 105(1) of the Federal Constitution states that there shall be an auditor-general, who shall be appointed by the Yang di-Pertuan Agong on the advice of the prime minister and after consultation with the Conference of Rulers.

Article 107(1) of the Federal Constitution states that the auditor-general shall submit his reports to the Yang di-Pertuan Agong, who shall cause them to be laid before the House of Representatives.

We know now that one of the reports is the audit and report on 1MDB.

Based on the wordings of Article 107 (1), it seems that there are two constitutional duties or functions to be performed, one is the submitting of reports by the auditor-general to the Yang di-Pertuan Agong, and the other, is the laying of the reports by the Yang di-Pertuan Agong before the House of Representatives.

Now, if for reasons unknown, the auditor-general submits his report to the cabinet and not to the Yang di Pertuan Agong, the cabinet cannot in any event interfere in the performance or the exercise of the Yang di-Pertuan Agong’s constitutional function or duty of laying the said report before the House of Representatives.

The cabinet cannot interfere because this function of laying reports by the Yang di-Pertuan Agong before the House of Representatives is not to be carried out in accordance with the advice of the cabinet.

Article 40(1) of the Federal Constitution states, inter alia, that in the exercise of his function under this constitution, the Yang di-Pertuan Agong shall act in accordance with the advice of the cabinet, except as otherwise provided by this constitution, but shall be entitled, at his request, to any information concerning the government of the federation which is available to the cabinet.

Article 40(1A) states, inter alia, that in the exercise of his functions under this constitution , where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.

There are many provisions in the Federal Constitution that require the Yang di-Pertuan Agong to act on advice in the exercise of his function. One of it is, as we saw earlier, the appointment of the auditor-general himself.

Now, Article 107(1) does not state that the laying of the reports by the Yang di-Pertuan Agong before the House of Representatives is to be done in accordance with advice, on advice or after considering advice. What this must mean is it is a mandatory function by the Yang di-Pertuan Agong supported by the words ‘shall cause them to be laid’.

A form of check and balance

It is mandatory because the auditor-general’s report relates to the accounts of the federation and the states. In other words, the auditor-general’s report spells out how the people’s money were spent. That is why there is this compulsory requirement to lay it before the House of Representatives, and not anywhere else. This is a form of check and balance as intended by those who drafted of the Federal Constitution.

Even if there is a contrary argument that Article 40(1) actually means that all functions of the Yang di-Pertuan Agong under this constitution is to be exercised in accordance with the advice of the cabinet, which includes the laying of the Auditor General’s report before the House of Representatives, the Yang di-Pertuan Agong still nevertheless has to carry out his function under Article 107(1), and for that the Yang di-Pertuan Agong may then invoke his powers under the proviso to Article 40(1) which states that the Yang di-Pertuan Agong shall be entitled at his request, to any information concerning the government of the Federation which is available to the cabinet, including the auditor-general’s report on 1MDB.

The cabinet may put whatever label it wants to on the auditor-general’s report on 1MDB under a misconceived notion, however, the Yang di-Pertuan Agong has a constitutional function or duty to carry out, and should not be swayed by any advice suggesting the contrary.

In the circumstances, the Yang di-Pertuan Agong should invoke his powers under the proviso to Article 40(1) to request for the auditor-general’s report on 1MDB, and should thereafter resort to his powers under Article 55 of the Constitution to summon Parliament and lay this auditor-general’s report on 1MDB before the House of Representatives.

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PUTHAN PERUMAL is an advocate and solicitor of the High Court of Malaya. - Mkini