Wednesday, July 29, 2015

Art 145(6) is a saving provision & not Cecil Sheridan's guarantee of tenure as Apandi seems to believe

by Ganesh Sahathevan
It has been reported that the newly appointed Attorney General of Malaysia, Tan Sri Apandi Ali , has said with regards the dismissal of his predecessor Tan Sri Ghani Patail:

"Under the existing Clause (5) of Article 145, the Attorney-General holds office during the pleasure of the Yang di-Pertuan Agong," - See more at:
"Under the existing Clause (5) of Article 145, the Attorney-General holds office during the pleasure of the Yang di-Pertuan Agong. Clause (6) of Article 145 of the Federal Constitution does not apply as it is a savings provision which only applied to the incumbent Attorney-General at the material time when the amended Article 145 came into force. "This is clearly stated in Clause (6) of Article 145. The Attorney-General at the time was Cecil M. Sheridan who served as Attorney-General from 1959 to 1963."
While Englishman  are known to be  eccentric  , it does seem  a bit over the top even for them  to have inserted in the founding constitution of a country  provision to guarantee the  tenure of any one man. It is therefore more likely than not that  Clause (6) of Article 145  was drafted so as to ensure that not merely  Sheridan ,but all  his successors,  enjoyed the same degree of independence that he did. In fact, Clause (5) of Article 145  states :

(5) Subject to Clause (6), the Attorney General shall hold office during the
pleasure of the Yang di-Pertuan Agong and may at any time resign his office and,
unless he is a member of the Cabinet, shall receive such remuneration as the Yang
di-Pertuan Agong may determine.
That Clause (5) should forever be read subject to Clause (6) when Clause (6) was intended to be a one-off, applicable to just one man,
seem incongruous with the vary nature of the Constitution , ie a document that is meant to exist in perpetuity as the country's primary or seminal source of law.

It does seem as  if  Patail's removal or dismissal (Apandi confirms this) is unlawful.The consequences are going to be interesting.

Friday, July 10, 2015

Agong,Malay Rulers, And Their Powers To Dismiss A Sitting Prime Minister-More

by Ganesh Sahathevan

The following extracts from a paper by Anne Twomey, Professor of Constitutional Law, University of Sydney:

The rule of law is also an important principle. It potentially supports the dismissal of a Prime Minister who persists in serious breaches of the law or the Constitution. It also would potentially permit a Governor-General to decline to act upon advice to commit a manifest breach of the Constitution or of a law. However, the application of this principle is often tempered by another principle, the separation of powers and the role of the judiciary in determining legality. Where the judiciary may not determine legality, because the matter is not justiciable, or where the breach of the rule of law is both serious and uncontestable or uncontested, then an exercise of a reserve power to reject advice or to seek new advisers, may be warranted.

The above is to be read in conjunction with the  earlier post  below ,and taken together one can see ever more clearly that the Agong and Malay Rulers have a duty born of culture and tradition  to at least consider using their powers to dismiss a sitting prime minister when the situation warrants it.In the current Malaysian context,there is a case where. among other issues of good governance,  the rule of law is being ignored in that a corporation headed by the prime minister is refusing to cooperate with a number of statutory bodies appointed to investigate that corporation:

The Agong can dismiss the Prime Minister , the Malay Rulers have powers they are duty bound to exercise

Thursday, July 9, 2015

The Agong can dismiss the Prime Minister , the Malay Rulers have powers they are duty bound to exercise

by Ganesh Sahathevan*

In considering Constitutional Law it is important that one does not dismiss the cultural, religious and other societal factors that provide the context within which constitutional matters are decided in reality.

To appreciate the full extent power of Malaysia's Malay Rulers, the sultans of the respective states, and the King, or Agong, who they choose from among themselves to rule the country in turn, one needs to appreciate that the rulers occupy a paramount place in the Malay community and in the Islamic faith that all Malays are at least nominally adherents.

Therefore, while nominally constitutional monarchs the rulers have a cultural influence that is probably in excess of any strict legal reading of the constitutions of the Malaysian states and the federal constitution.
The recent comments of the Crown Prince of Johor are a case in point.

To understand the extent of their powers an understanding of the legal basis underlying the dismissal of Australian Prime Minister Gough Whitlam in 1975 by the Governor-General Sir John Kerr, as representative of Queen Elizabeth in her capacity as Queen of Australia, can provide useful guidance.
To summarize that incident:

On 11 November 1975 the Governor-General, Sir John Kerr, dismissed Gough Whitlam as Prime Minister .For the first time, an unelected vice-regal representative, the Governor-General, had removed from office a prime minister who had a majority in the House of Representatives.

Kerr's reasons  in his own words as follows:

It has been necessary for me to find a democratic and constitutional solution to the current crisis which will permit the people of Australia to decide as soon as possible what should be the outcome of the deadlock which developed over supply between the two Houses of Parliament and between the Government and Opposition parties. The only solution consistent with the constitution and with my oath of office and my responsibilities, authority and duty as Governor-General is to terminate the commission as Prime Minister of Mr Whitlam and to arrange for a caretaker government able to secure supply and willing to let the issue go to the people.

I should be surprised if the Law Officers expressed the view that there is no reserve power in the Governor-General to dismiss a Ministry which has been refused supply by the Parliament and to commission a Ministry, as a caretaker ministry which will secure supply and recommend a dissolution, including where appropriate a double dissolution. This is a matter on which my mind is quite clear and I am acting in accordance with my own clear view of the principles laid down by the Constitution and on the nature, powers and responsibility of my office.

While the Malaysian and Australian Constitutions are of course very different they are both based on the concept of a constitutional monarchy. The key phrase  in Kerr's reasoning is the reference to reserve powers and it would be fair to say that these powers are present in the Malaysian Constitution.

In the Malaysian context it is important to keep in mind the following that makes Malaysia very different from Australia:
a) Malaysia was formed by agreement of the rulers,and so it is at least open to argument that they can choose to take their states out of the federation if they so wish.

b) The Malaysian Prime Minister cannot dismiss the Agong, while the Australian Prime Minister has at least the power to dismiss the Queen's representative.

c) Culturally, the majority Malays, unlike Australians and even the British,  would not object to their rulers speaking on any matter , including the government of the day. Again there is the recent example of the Johor Crown Prince.

Taking these few factors alone, and more extensive research will probably find more, the  Agong and the Malay Rulers would, prima facie, appear to possess reserve powers greater than that of the Australian Governor-General (who represents the Queen as head of state). It follows then that they have a responsibility to exercise that power in times of crisis where a change of at least prime minister is necessary. Readers,can decide for themselves if there is at this point of time in Malaysia's history such a crisis, requiring the rulers to intervene.
*BEc,LLB (Monash), LLM (Sydey)