Agong has power to dismiss PM Najib, asserts lawyer

Dr Mahathir's lawyer Haniff Khatri says a provision in the Federal Constitution gives the Agong the authority to do so, dismissing claims by BN leaders that there is no such power.

SHAH ALAM: It is wrong to suggest that the Yang diPertuan Agong has no power to remove a sitting prime minister, says lawyer Mohamed Haniff Khatri Abdulla.

Haniff, who represents former prime minister Dr Mahathir Mohamad, said the Federal Constitution clearly stated that the “power to appoint includes power to dismiss”.

“Some quarters have raised questions about the Agong’s power to act against the prime minister (Najib Razak). To me, the answer is in the Constitution, which is the country’s highest piece of legislation.

“Article 40(2)(a) states that the Agong may act in his discretion in the appointment of a prime minister. It doesn’t talk about the power to dismiss the prime minister.

“But Section 29 of the 11th Schedule says that where a written law confers upon any person or authority a power to make appointments to any office, the power shall be construed as including a power to dismiss or suspend any person appointed and to appoint another person temporarily in the place of any person so suspended,” he said.

He added that as the Schedules were made alongside the Constitution, to leave them out would make the latter incomplete.

“So the answer is there, but we don’t look. And when we don’t look, we won’t know,” said the lawyer at a forum here last night.

He was referring to statements made by Barisan Nasional (BN) leaders in dismissing the Save Malaysia movement’s attempt to have the Agong, Tuanku Abdul Halim Mu’adzam Shah, remove Najib.

This, they said, was because the Agong had no such power and that the only way to oust a “democratically-elected leader and government” was through the general election.

Their comments came following Dr Mahathir’s audience with the Agong on Sept 15, where he had reportedly handed the latter a set of Citizens’ Declaration documents containing 1.4 million signatures calling for, among others, the removal of Najib.

The Prime Minister’s Office later issued a statement saying that the Agong had informed Najib of the meeting. The statement also said that the Agong had told Mahathir that there was nothing to be done as the declaration “was not in accordance with the Constitution.”

“That is wrong. Besides, Article 43 (6) of Schedule 6 requires a prime minister to take an oath to uphold, protect and defend the Constitution,” Haniff said.

“If the alleged wrongdoings of Najib, as listed in the Citizens’ Declaration are true, then that is a breach of the Constitution and the rule of law.

“If a person breaches an oath taken in court, they can be held liable for contempt of court. So if it’s wrong to lie under oath in front of the court, what more the one made in front of the Agong.”

Constitutional expert Professor Aziz Bari and lawyer Adnan Seman, who also spoke at the forum, appeared initially unaware of the provisions revealed by Haniff.

They then questioned the practicality of it, and where one would draw the line.

Adnan said: “So, now some who don’t like the current prime minister are asking the Agong to remove Najib. Let’s say that happens and later on Pakatan Harapan (PH) comes into power.

“And let’s say Pakatan still fails to resolve its conflicts and decides to split up. The public then loses confidence in their leader and again asks the Agong to remove the prime minister at that time. Then what? Where do we draw the line?”

He and Aziz then called on those who were unhappy with the current administration to wait for the moment when democracy could truly be practised – the next general election.