Friday, July 30, 2021

The EO revocation question – can the King go to court?

 

Article 130 of the Federal Constitution states that the King may refer any question on the effect of any provision of the Constitution to the Federal Court for an opinion.

PETALING JAYA: A retired judge and a senior lawyer have taken opposing stands on whether the Yang di-Pertuan Agong can go to court to determine if he must give his consent to revoke the emergency ordinances (EOs).

Article 130 of the Federal Constitution states that the King may refer any question to the Federal Court for an opinion on the effect of any provision of the Constitution which has arisen or appears likely to arise.

Former judge Gopal Sri Ram said the King, being a constitutional monarch, must act on the advice of the prime minister and the Cabinet.

“The King has no power under Article 130. Any action must come from the Prime Minister’s Office (PMO) to the attorney-general (AG) to file a reference,” he said.

Gopal Sri Ram.

Sri Ram said the King could not act on his own volition as he had no “machinery” to do so.

“Any reference must be on the advice of the prime minister and the Cabinet as stated under Article 40,” he said.

Sri Ram said the AG could also decline the King’s request to file a reference.

Lawyer Bastian Pius Vendargon, however, said that under the present circumstances with an Emergency in place with a conundrum arising, the King should be entitled to refer the constitutional issue to the court.

Bastian Pius Vendargon.

He said this was for the King to get a definitive ruling from the Federal Court, which could help resolve the constitutional crisis.

“Therefore, the King should be entitled to rely on Article 130 to bring in the participation of the apex court, which is the ultimate arbiter on interpretation of the Constitution,” he said.

Vendargon said normally, the King would turn to the AG but under the present circumstances, the chief legal adviser to the government was in a position of conflict.

“The King may turn to his private legal advisers to take the necessary steps under Article 130,” he added.

On Thursday, Istana Negara issued a statement saying Putrajaya did not get the King’s consent to revoke the EOs and that law minister Takiyuddin Hassan’s statement in Parliament on Monday was “inaccurate and had misled the members of the Dewan Rakyat”.

Comptroller of the Royal Household Ahmad Fadil Shamsuddin said in the statement that Articles 150(2B) and 150(3) of the Constitution clearly gave the authority for the enactment and revocation of ordinances to the King.

He said the King had earlier told Takiyuddin and AG Idrus Harun during a virtual audience on July 24 that the revocation of EOs should be tabled and debated in Parliament.

The position of the Palace is that any revocation of EOs must first get the consent of the King before gazettement, while the executive is of the view that the monarch must act on advice and he is assumed to have given his consent.

In replying to the royal rebuke, the PMO said in a statement that the government’s revocation of the EOs had been done in accordance with the law and the Constitution. - FMT

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