09-06-2021, 10:42 AM
AG’s position goes against spirit of Malaysia’s constitutional democracy – joint statement
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WE, the undersigned civil society groups, respond to Attorney-General Tan Sri Idrus Harun’s statement on September 4. The attorney-general referred to the operation of Articles 40(2)(a) and 43(2)(a) of the federal constitution and drew two conclusions as a result:
1) His Majesty the Yang di-Pertuan Agong’s power to appoint a prime minister is an absolute power (kuasa mutlak); and,
1) His Majesty the Yang di-Pertuan Agong’s power to appoint a prime minister is an absolute power (kuasa mutlak); and,
2) Any step by the Dewan Rakyat to verify whether or not Prime Minister Datuk Seri Ismail Sabri has the confidence of the majority of the members of the Dewan Rakyat through a direct vote in the House would be an attempt to supplant the alleged absolute power of the Agong.
With respect to the office of the attorney-general, Idrus’ conclusions are preposterous. It goes against the spirit and letter of Malaysia’s constitutional democracy and embarrasses the office of the attorney-general. In light of the same, the public deserves to know Idrus’ advice to the government and the Agong on these issues.
First, is it Idrus’ position that Malaysia is governed by a monarchy with absolute power? As every Malaysian knows, Malaysia practises a system of parliamentary democracy with a constitutional monarchy, under which no institutions have absolute power – whether it is the constitutional monarch, the executive, Parliament or the judiciary. All of these institutions exercise their powers based on the limits imposed under the constitution, the principles of constitutional democracy and the rule of law. His Majesty the Yang di-Pertuan Agong has himself stressed this point to the government on a number of occasions in the past few months, and we refer to, for example, the statements from the Istana Negara dated July 29 and August 18. As eminent scholars have explained, a constitutional monarch’s discretion under Articles 40(2)(a) and 43(2)(a) is a “controlled discretion” because “no discretion can be absolute and must be exercised within the parameters of the law and conventions.” (Faruqi 2020, p. 6).
With respect to the office of the attorney-general, Idrus’ conclusions are preposterous. It goes against the spirit and letter of Malaysia’s constitutional democracy and embarrasses the office of the attorney-general. In light of the same, the public deserves to know Idrus’ advice to the government and the Agong on these issues.
First, is it Idrus’ position that Malaysia is governed by a monarchy with absolute power? As every Malaysian knows, Malaysia practises a system of parliamentary democracy with a constitutional monarchy, under which no institutions have absolute power – whether it is the constitutional monarch, the executive, Parliament or the judiciary. All of these institutions exercise their powers based on the limits imposed under the constitution, the principles of constitutional democracy and the rule of law. His Majesty the Yang di-Pertuan Agong has himself stressed this point to the government on a number of occasions in the past few months, and we refer to, for example, the statements from the Istana Negara dated July 29 and August 18. As eminent scholars have explained, a constitutional monarch’s discretion under Articles 40(2)(a) and 43(2)(a) is a “controlled discretion” because “no discretion can be absolute and must be exercised within the parameters of the law and conventions.” (Faruqi 2020, p. 6).
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