Saturday, October 8, 2016

Agong's "right and duty" to exercise his reserve powers "should never be in question"- Crt of Appeal & Federal Crt have explained why the Monarch can dismiss the PM

These relevant parts of the judgement of the Court of Appeal in the matter of Zambry v Nizar (the Perak Assembly case)  make clear that the Agong has the power to dismiss a sitting Prime Minitser:

As Blackstone defined it:- …The medieval King was doth Head of the Kingdom and feudal Lord. He had powers accounted for by the need to preserve the realm against external enemies and an undefined residual power which he might use for the public good…”.  Blackstone’s definition holds true too in (Malaysia).

The nine Rulers in the Malay States are indigenous Rulers and enjoyed their own prerogatives all along.....the traditional prerogatives of the Rulers remain and are buttressed by the Constitution of the respective States. In fact upon independence, our Constitution as drafted under the Chairmanship of Lord Reid, preserved and indeed enhanced the monarchy in Malaysia in several ways as seen in its provisions.
What is rarely displayed however, is the fact that the Yang di-Pertuan Agong and Rulers are seized with prerogative privileges and residual rights and powers. Some of which are expressed, others implied.

Unobtrusive as they may seem they are in fact omnipresent and their exercise may have far-reaching effect on the governance of the State. It must be stressed that the Royal Prerogative, discretionary and residual powers do not repose in the royal personages in vain. It is best expressed by Viscount Radcliffe
in Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 page 113 where His Lordship observed:- “… The essence of a prerogative power if one follows Locke’s thought, is not merely to administer the existing law – there is no need for any prerogative to execute the law – but to act for the public good where there is no law, or even to dispense with or override the law where the ultimate preservation of society is in question.”

 And similarly in the Malaysian context, it was observed by Lee Hun Hoe CJ (Borneo) in Government of Malaysia v Mahan Singh [1975] 2 MLJ 155 that:- “… The King is the first person in the nation – being superior to both Houses in dignity and the only branch of the Legislative that has a separate existence and is capable of performing any act at a time when Parliament is not in being.”

Following from that, it has to be said that, it is not at any time or any situation that this discretionary or prerogative power can be invoked. The general acceptance is that it has to be exercised judiciously.
It is clear that the Crown has a right and duty to protect its realm and citizens in times of war and peace and can invoke its prerogative to that end. That should never be in question.  

The above analysis, handed down by Zainur Ali CA on behalf of the Court of Appeal,  was upheld when the matter went on appeal to the Federal Court.


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