July 30, 2021

Response to the 29 July 2021 Prime Minister’s Office Statement

The Prime Minister’s office in issuing the statement dated 29 July 2021 to rebut the Palace’s statement issued earlier in the day, has in a futile exercise to defend the Perikatan Nasional Government, committed gross misconduct in a most appalling and contemptuous manner.

Firstly, the PMO’s statement in seeking to justify the wrongful actions by providing a purported chronology, suggest that KYDMM Yang di Pertuan Agong misrepresented the facts in the Palace statement. This is in an affront to the Royal Institution and to the Yang di Pertuan Agong himself.

Secondly, the PMO’s statement itself is misleading because it failed to admit that Yang Berhormat Datuk Seri Takiyuddin bin Hassan as Minister in the Prime Minister’s Department representing the Cabinet and Yang Berbahagia Tan Sri Idrus bin Harun as Attorney General were instructed by the Yang di Pertuan Agong to table the Proclamation of Emergency and the Ordinances for debate and voting in Parliament. The truth and the fact of the matter is that the Cabinet has willfully and deliberately treated the Yang di Pertuan Agong’s instructions with total disdain by failing to act as instructed. This is disobedience at the most serious level.

Thirdly, the PMO’s statement in referring to Article 40(1) of the Constitution that the Yang di Pertuan Agong is required to act in accordance with the advice of the Cabinet has wrongfully treated the Yang di Pertuan Agong as a mere rubber stamp or mouthpiece of the Cabinet without even giving scant respect to the Yang di Pertuan Agong’s position as a symbol of stability, national unity and guardian of the Constitution. The Yang di Pertuan Agong is the moral and legal compass of the nation. HRH Sultan Azlan Shah in his essay “The Role of Constitutional Rulers” has described the powers of Constitutional Monarchs as follows:

“A King is a King, whether he is an absolute or constitutional monarch. The only difference between the two is that whereas one has unlimited powers, the other’s powers are defined by the Constitution. But it is a mistake to think that the role of a King, like a President, is confined to what is laid down by the Constitution. His role far exceeds those constitutional provisions.”

Yang Berhormat Datuk Seri Takiyuddin bin Hassan as Minister in the Prime Minister’s Department misled Parliament on 26 July 2021 in failing to disclose the material fact that the Yang di Pertuan Agong has clearly and expressly instructed for the Proclamation of Emergency and the Ordinances to be debated and voted upon in Parliament. The statement was made in the presence of the Prime Minister, Tan Sri Muhyiddin Yassin and all the Cabinet Ministers. However, no one had seen it fit to correct the material non-disclosure. Therefore, the Prime Minister and the Cabinet must be collectively responsible for misleading Parliament and the public.

Fourthly, the interpretation by the Cabinet that Article 150(3) is satisfied by having the Proclamation of Emergency and the Emergency Ordinances being “laid” on the MPs table is a most dishonest argument. This argument fails to give effect to the words:

“A Proclamation of Emergency and any ordinance shall be laid before both Houses of Parliament … shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance.”

There must be debate and voting for the Parliaments to pass a resolution.
Further, it is an established principle of constitutional interpretation that a broad and purposive approach taking into consideration the philosophy and historical context of the provisions must be applied. The philosophy and historical context on the power to enact laws including emergency ordinances lies with Parliament and not the Executive. The historical context and philosophy are set forth in paragraphs 174 and 175 of the Reid Commission Report.

Paragraph 174:
“We see no need to recommend that the executive should have any emergency powers to act in such a situation before Parliament enacted legislation to deal with in.”

Paragraph 175:
“Emergencies, such as war or internal disturbance, which constitute an immediate threat to the security or economic life of the country or any part of it, may have to be dealt with more promptly … if Parliament is not sitting when the Proclamation is made the Government can make ordinances having the force of law. Parliament must be recalled as soon as possible and must approve of any such ordinances within fifteen days or otherwise the ordinances will cease to have effect.”

The period of fifteen days was removed in the 1960 Constitutional Amendments. However, the purpose and philosophy remain, it is Parliament and not the Executive that is to have the final say whether to approve or reject the Proclamation of Emergency and the Emergency Ordinances.

Fifthly, the words in Article 150(3): “if not sooner revoke” means Parliament may by resolution annul the Proclamation and Ordinance when a Parliament is convened if the Proclamation and Ordinance have not been revoked before the sitting. Yang Berhormat Datuk Seri Takiyuddin bin Hassan misled Parliament and the public when he announced that the Proclamation and Ordinances had been revoked on 21 July 2021 when this was not true.

Only the Yang di Pertuan Agong can revoke the Proclamation and Ordinances and the revocation can only take effect when it is gazetted, which has not been done. Again, the Prime Minister and the Cabinet are collectively responsible because not one of them corrected the misstatement from the 26th to the 29th of July 2021 until the Palace issued the statement.

In the circumstances, the Perikatan Nasional Government has committed serious breaches and misconduct. The Perikatan Nasional Government must resign immediately.

Committee Members:
YB William Leong Jee Keen (KEADILAN, Selayang)
YB Mohamed Hanipa Maidin (AMANAH, Sepang)
YB Ramkarpal Singh A/L Karpal Singh (DAP, Bukit Gelugor)
YB Sivarasa Rasiah (KEADILAN, Sungai Buloh)
YB Muhammad Faiz Fadzil (AMANAH, Permatang Pasir)
YBhg Fadhlina Sidek (KEADILAN)
YBhg Dr Zulqarnain Lukman (AMANAH)

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