OPINION : POWERS OF THE TIMBALAN YANG di-PERTUAN AGONG UNDER THE FEDERAL CONSTITUION

I got this from somewhere. I believe it is a legal opinion.

OPINION

POWERS OF THE TIMBALAN YANG di-PERTUAN AGONG UNDER THE FEDERAL CONSTITUION

1. The Yang di-Pertuan Agong shall act on the advice of the Cabinet or of a Minister acting under the authority of the Cabinet in the exercise of his functions under the Constitution: Article 40(1).

2. The Yang di-Pertuan Agong must accept and act in accordance with such advice under the mandatory obligation under Article 40(1A) Federal Constitution. 

3. Under the Federal Constitution, there is no discretion for the Yang di-Pertuan Agong except in relation to Article 40(2).

4. If he fails or refuses to adhere to the mandatory constitutional requirement under Article 40(1A), this is tantamount to the Yang di-Pertuan Agong being “unable to exercise the function of his office ... for any other cause”.

5. The Yang di-Pertuan Agong being “unable to exercise the function of his office” triggers Article 33(1) of the Federal Constitution. In this instance, the Timbalan  Yang di-Pertuan Agong is obliged to exercise the said function.

6. The term “any other cause” in Article 33 must be interpreted broadly so as to ensure that the provisions of the Constitution, in this instance, Article 40(1A) are adhered to. 

7. This principle of interpretation was stated succinctly by Raja Azlan Shah AG LP (as His Royal Highness then was) in the leading case of Dato Menteri Othman bin Baginda v Dato Ombi Syed Alwi bin Syed Idrus[1981] 1 MLJ 29 at 32:

i. “In interpreting a constitution two points must be borne in mind. First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. 

Secondly, a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way — ‘with less rigidity and more generosity than other Acts’ (see Minister of Home Affairs v Fisher [1979] 3 All ER 21. 

A constitution is sui generis, calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation.”

8. This principle was accepted very recently by the Federal Court in Gin Poh Holdings Sdn Bhd (in voluntary liquidation) v The Government of The State of Penang &Ors  [2018]  MLJU 273

i. “It is trite that a constitution is sui generis and calls for principles of interpretation of its own. The constitution should be construed broadly and not pedantically, with less rigidity and more generosity than statutes.”

Dated 27 May 2018