Dr Mahathir apologise for the amendment of the constitution

by Tun Dr Mahathir Bin Mohamad

1. I would like to apologise for the amendment to the constitution which made the approval and signature of the Yang di-Pertuan Agong no longer necessary for the legalising of an act of Parliament. It would seem that because of the amendment, the new National Security Law has become operational even though the Yang di-Pertuan Agong has not signed it.

2. However I would like to point out that the amendment is not for all laws. Some laws passed by Parliament will still need the consent and signature of the Yang di-Pertuan Agong. In fact there are more than thirty proceedings listed out in the constitution that still needs the Agong’s approval frequently without the advise of the Prime Minister.

3. Among these rights and power is that of declaring a state of emergency. The state of emergency is reserved for the Yang di-Pertuan Agong because it’s implications are serious. It gives the Government the right to suspend laws. With this right the Government can arrest and detain any person without trial.

4. Clause (I) of Article 150, Proclamation of Emergency states “If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.”

(2) A Proclamation of Emergency under Clause (I) may be issued before the actual occurrence of the event which threatens the security, or the economic life, or public order in the Federation or any part thereof if the Yang di-Pertuan Agong is satisfied that there is imminent danger of the occurrence of such event.

(2A) The power conferred on the Yang di-Pertuan Agong by this Article shall include the power to issue different Proclamations on different grounds or in different circumstances, whether or not there is a Proclamation or Proclamations already issued by the Yang di-Pertuan Agong under clause (I) and such Proclamation or Proclamations are in operation.

(2B) If at any time while a Proclamation of Emergency is in operation, except when both Houses of Parliament are sitting concurrently, the Yang di-Pertuan Agong is satisfied that certain circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as circumstances appear to him require.

(2C) An ordinance promulgated under Clause (2B) shall have the same force and effect as an Act of Parliament, and shall continue in full force and effect as if it is an Act of Parliament until it is revoked or annulled under Clause (3) or until it lapses under Clause (7); and the power of the Yang di-Pertuan Agong to promulgate ordinances under Clause (2B) may be exercised in relation to any matter with respect to which Parliament has power to make laws, regardless of the legislative or other procedures required to be followed, or the proportion of the total votes required to be had, in either House of Parliament.

(3) A Proclamation of Emergency and any ordinance promulgated under Clause (2B) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance, but without prejudice to anything previously done by virtue thereof or to the power of the Yang di-Pertuan Agong to issue a new Proclamation under Clause (I) or promulgate any ordinance under Clause (2B).

(4) While a Proclamation of Emergency is in force the executive authority of the Federation shall, notwithstanding anything in this Constitution, extend to any matter within the legislative authority of a State and to the giving of directions to the Government of a State or to any officer or authority thereof.

(8) Notwithstanding anything in this Constitution:

(a) the satisfaction of the Yang di-Pertuan Agong mentioned in Clause (I) and Clause (2B) shall be final and conclusive and shall not be challenged or called in question in any court on any ground.

From these articles and clauses it is clear that:

(I) The power of the Agong to proclaim an emergency solely rests with the Yang di-Pertuan Agong and may not be challenged.

5. There is no mention in this case that the Agong acts on the advise of the Prime Minister. The Yang di-Pertuan Agong can even promulgate an ordinance which shall have the same force as an Act of Parliament.

6. There is therefore no necessity for any other laws to enable the Government to suspend laws in order to deal with a security situation.

7. Besides being superfluous the new National Security Act, by giving the power of the Agong to the Prime Minister is derogatory to the provision in Article 38 (4) which states “No law directly affecting the privileges, position, honours or dignities of the Rulers shall be passed without the consent of the “Conference of Rulers”.

8. Clearly the National Security Act, by encroaching unto the special position of the Conference of Rulers, is contrary to the rights of the Yang di-Pertuan Agong to declare a state of emergency. For this Security Act to become law the consent and the signature of the Yang di-Pertuan Agong is still needed.

9. Under (3) of Article 40 Federal Law may make provision for requiring the Yang di-Pertuan Agong to act after consultation of any person other than the Cabinet in the exercise of any function other than:

(a) functions exercisable in his discretion.

10. The declaration of an Emergency is one which the Constitution specifies as being at the discretion of the Yang di-Pertuan Agong. Since the National Security Act is meant to give the power of the Yang di-Pertuan Agong to the Prime Minister as chairman of the Security Council, the need for the Yang di-Pertuan Agong to have the sole right to decide a state of Emergency becomes redundant. Effectively the NSC had taken away the power and the right of the Yang di-Pertuan Agong. For this to be done the consent of the Yang di-Pertuan Agong and the Conference of Rulers has to be obtained.

11. Clearly when the Government ignores the request of the Rulers and the Yang di-Pertuan Agong to revise the NSC Act, it is not complying with the Constitution as amended. This being so the National Security Act cannot become law.

12. Article 130 – Advisory jurisdiction of Federal Court.

The Yang di-Pertuan Agong may refer to the Federal Court for its opinion any question as to the effect of any provision of this Constitution which has arisen or appear to him likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it.

13. This provision entitles the Yang di-Pertuan Agong to refer to the Federal Court should there be doubt as to the legality or otherwise of the National Security Act which has not obtained the consent and signature of the Yang di-Pertuan Agong.

14. Appointment of the Prime Minister.

One of the discretionary powers of the Yang di-Pertuan Agong is the appointment of the Prime Minister. The need is for the Yang di-Pertuan Agong to appoint an elected person as P.M. if he has the support of the majority of the members of the Dewan Rakyat. The name submitted by the winning party need not be accepted by the Yang di-Pertuan Agong if he feels there are other candidates.

15. Thus, based on similar provisions in the respective State Constitutions, in three states – Terengganu, Perlis and Selangor – the candidates submitted by the winning parties were rejected and the Rulers decided on other candidates. They were appointed Menteri Besar and were accepted by the state councils.

16. The Yang di-Pertuan Agong clearly has discretionary power to appoint a Prime Minister. If the Dewan Rakyat at its sitting rejects the candidate appointed by the Agong then he ceases to be the Prime Minister. A new candidate will then be named by the Yang di-Pertuan Agong.

17. (105) Auditor General

(I) 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.

106. Powers and duties of Auditor General
(I) The accounts of the Federation and of the States shall be audited and reported on by the Auditor General.
(2) The Auditor General shall perform such other duties and exercise such powers in relation to the accounts of the Federation and of the States and to the accounts of other public authorities and of those bodies which are specified by order made by the Yang di-Pertuan Agong, as may be provided by federal law.

107. Reports of Auditor General

(I) 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.

18. The Prime Minister, Dato Sri Najib had ordered the Auditor General to audit the accounts of the 1MDB. But instead of submitting this report to the Yang di-Pertuan Agong, the Auditor General reported instead to the Public Accounts Committee. The report of the PAC together with this report of the Auditor General were then submitted to the Attorney General. The Auditor General’s report was then declared to be an official secret and was placed under the Official Secrets Act.

19. This is contrary to the provision in the Constitution wherein the report of the Auditor General should be submitted to the Yang di-Pertuan Agong and then laid before the House of Representatives. Clearly the Government of Dato Sri Najib has not only ignored the provision of the Constitution but also acted against it by giving the report to the Attorney General. It was then classified as official secret.

20. The essence of an audit is to expose any wrong-doings or mismanagement by those responsible for the monies of an organisation. By making the Auditor General’s report a secret the whole purpose of the auditing is negated. The public has a right to charge the Government for attempting to hide the Auditor General’s reports.

21. As I said at the beginning, the amendment to the Constitution which can render the consent and signature of the Yang di-Pertuan Agong unnecessary is not total. The consent and signature is still needed if the act impinges on the authority and position of the Yang di-Pertuan Agong. And the National Security Act certainly impinges and makes the power of the Yang di-Pertuan Agong to declare a state of Emergency superfluous and unnecessary. For this Act the assent and signature of the Yang di-Pertuan Agong remains necessary.

22. In declaring that the National Security Act is now legal even though it does not get the assent and signature of the Yang di-Pertuan Agong, Dato Sri Najib is not adhering to the amendment to the Constitution as made when I was Prime Minister.

23. I sincerely apologise for making the amendment as it is open to misinterpretation. The amendment has not ordered the other powers of the Yang di-Pertuan Agong, more than thirty of them, invalid.

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