CONSTITUTIONAL DISCOURSE ON THE POWERS OF YDPA AND THE FREEDOM OF SPEECH
On the 23rd of October, the Prime Minister was granted an audience with the Yang di-Pertuan Agong (hereinafter the “YDPA”) to communicate the Cabinet’s proposal of declaring emergency under Article 150(1) of the Federal Constitution (hereinafter “the Constitution”). The proposal was reportedly made to combat the worrying spike in COVID-19 cases. The YDPA then met with the Malay Rulers to gather their views on the proposal. On the 25th of October, the YDPA via statement from the Istana Negara declared that there would be no need to proclaim a state of emergency as the government was sufficiently capable and equipped with the necessary means to tackle the pandemic without having to resort to a declaration of emergency. While some are of the view that the YDPA’s decision was laudable especially in light of many citizens protesting the possible declaration of an emergency just days before,i this chain of events has raised concerns from a constitutional perspective.
The YDPA’s decision to refuse Cabinet’s request to declare a state of emergency is one that has sparked discourse and elicited a multitude of responses. Many have responded by publishing their opinions on the matter, by speaking up on social media, ie. President of the Dewan Negara, Rais Yatim taking to Twitter, and even by other means, such as lawyer Syed Iskandar Syed Jaafar filing a suit against the government to clarify if the YDPA’s refusal to invoke emergency was constitutional.ii One of our university’s student bodies, the University of Malaya Association of New Youth (UMANY) also published their stance on the matter via a post on Facebook. In the post, UMANY opined that the YDPA should not interfere in national affairs and highlighted the constitutional provisions that form the basis of their statement.
As the above issues have garnered public attention, the UM Law Society hopes to provide insight on the matter from an academic legal perspective.
The Powers Of The Yang Di-Pertuan Agong Under The Federal Constitution
As per Article 4(1) of the Federal Constitution, the Constitution is the supreme law of the land. As a country that adopts the system of a constitutional monarchy and parliamentary democracy, the YDPA is a constitutional monarch who functions as the Head of State with roles extending to the executive, legislature and judiciary, so far as provided in the Constitution.
The spirit of his responsibilities is arguably reflected in his oath, which he takes and subscribes to before exercising his functions as per Article 37(1). As set out in Part I of the Fourth Schedule, the YDPA is to perform his duties in accordance with Malaysia’s Constitution and laws; to uphold the country’s laws; to protect Islam as the religion of the Federation; to uphold the rule of law and order; and to promote good governance of the country.
The starting point to decipher the YDPA’s range of powers as enshrined in the Constitution, are within Article 40(1) and 40(1A) of the Constitution. It is expressly stated that the YDPA, in exercising his functions under the Constitution or federal law, shall act in accordance with the advice of the cabinet or of a minister acting under the general authority of the cabinet, unless there are other provisions in the Constitution that state otherwise. Article 40(1A) further provides that the YDPA shall accept and act according to given advice.
If we refer to Article 40(2), the YDPA’s discretionary functions are clearly stated. This provision exhibits the exception stated in Article 40(1) as the YDPA is to act based on his own personal sagacity on the enumerated matters. Further, it states that the YDPA may act in his discretion “in any other case mentioned in the Constitution.”
On the issue of residual powers, Datuk Emeritus Prof. Dr Shad Saleem Faruqi is of the view that the YDPA may have such powers in a number of instances. These include the acceptance of advice of a caretaker government, and in the case of the dismissal of the Prime Minister should he no longer command the confidence of the Dewan Rakyat.
Politically, the Constitution does not expressly allow or disallow the YDPA’s involvement in such matters. However, HRH Sultan Nazrin Shah is of the view that the throne must be preserved as a neutral entity, above party politics. Taking cue from Walter Bagehot, he shares his belief, however, that a ruler may lend his analysis and comments in the form of advice and insight, encouragement and motivation as well as reminder and admonition in the interest of the people. On the other hand, Asst. Professor of Law at the National University of Singapore, Jaclyn C. Neo, is of the view that as the country democratises and incumbents lose their grip on power, there is a need to ensure that political actors do not thwart the democratic will of the political sovereign — the Rakyat. She believes that a democratically aimed gatekeeping role for the constitutional monarch can ensure this. Nevertheless, we stress that such a role has never been debated by the courts.
It can therefore be summarised that our YDPA remains as an apolitical head of state whose powers are proscribed by the Constitution.
The Powers of the Yang Di-Pertuan Agong to Proclaim Emergency
The issue at hand is whether Article 150(1) confers discretionary power to the YDPA to proclaim emergency. It begs the question of whether the terms “satisfied” and “may” used in Article 150(1) may in fact allow the YDPA to act at his own discretion and refuse the advice of the Cabinet to proclaim emergency. Article 150(1) states that the YDPA may issue a proclamation of emergency if he is satisfied that a grave emergency exists. Much debate has ensued, with many varying opinions arising on the matter.
If we refer to decided cases to ascertain the position of the law on the matter, the Privy Council case Teh Cheng Poh v Public Prosecutor takes precedence. It states that the YDPA as a constitutional monarch does not exercise any of his functions under the Constitution of his own initiative. Rather, he is required by Article 40(1) to act in accordance with the advice of the Cabinet except for matters expressly outlined in the Constitution to be his discretionary powers. The term “satisfied” in Article 150(1) is therefore a reference to the cabinet’s satisfaction. The more recent Federal Court case of Abdul Ghani Ali Ahmad & Others v Public Prosecutor echoes the sentiment.
These two cases are the current standing laws in regard to the extent of the power the YDPA has in proclaiming emergency. However, the unprecedented circumstance before us begets different interpretations of Article 150(1).
Tan Sri Tommy Thomas, ex-Attorney Generalviii and Tan Sri Ariff Yusof, former speaker of the Dewan Rakyat and lauded former judge, have shared their views of the YDPA’s residual discretion in Article 150(1). Tan Sri Ariff expressed that nothing in Articles 40(1) nor 40(1A) diminish such residual powers as Article 40(2) states that the YDPA may act at his discretion in any other case as mentioned in the Constitution, and Article 40(1A) only applies to the exercise of the YDPA’s functions under the Constitution or federal law. He believes that Article 150(1) falls within Article 40(2). Further, there is no federal law here to compel the YDPA to act, hence, Article 40(1A) does not apply to the present case.
On the other hand, President of the National Human Rights Society and former professor, Gurdial Singh Nijar, opines that similar use of the wordings “satisfied” and “may” are also used in different parts of the Constitution such as in Article 92, which provides for the national development plan. Here, the YDPA, if satisfied that the development plan is conducive to national interest, may proclaim any areas as development areas so as to allow the Parliament to give effect to said plans, even when it means overriding state jurisdiction. To interpret the term “satisfied” in Article 150(1) to be one of the YDPA’s personal discretion would mean that the same interpretation applies to Article 92, which would offer the YDPA powers far wider than that of his role as a constitutional monarch.
Former Chief Justice of Malaysia, Tun Abdul Hamid Mohamad also shared his views on the matter and stated that Article 150(8) holds the YDPA’s satisfaction in Article 150(1) to be final and conclusive which bars the courts from challenging the validity of the proclamation in Article 150(1). He therefore believes that while the actions of the YDPA are not permitted as per Article 40(1), they are in fact non-justiciable.
On the matter of justiciability, the majority in Stephen Kalong Ningkan v Government of Malaysiaxii held that the YDPA alone could decide on the state of emergency if he is satisfied and his decision is non-justiciable. Ong Hock Thye J however had a dissenting opinion and stated that His Majesty is not an autocratic ruler while making reference to Art 40(1).
It is to be highlighted, however, that the crux of Stephen Kalong Ningkan was in regards to the validity of the YDPA’s proclamation of Emergency in Sarawak and whether it was justiciable. Article 40(1) was not discussed. Notwithstanding that, the recent cases of Semenyih Jayaxiii and Indira Gandhi that affirm the basic structure doctrine which upholds judicial review, lend credence to the view that the proclamation of emergency may in fact be brought before the courts.
It was later brought up in Abdul Ghani Ali Ahmad, quoting Stephen Kalong Ningkan, that Article 150(1) is suggestive of it being a discretionary power of the YDPA which falls under the phrase “in any other case mentioned in this Constitution” as in Article 40(2). However, it was held in this case that the debate on YDPA’s power to proclaim emergency has been resolved and answered in Teh Cheng Poh, by highlighting that the YDPA, in the position of a constitutional monarch, is bound by Cabinet advice.
While we do believe that the Constitution is a living document that needs to be interpreted according to the times and the progress the nation sees, it is trite that academic discourse remains only as such until settled by the courts. Although there are, as seen above, a multiplicity of different views, the only view that has been tested by the courts, propounds the notion that the YDPA must act on the advice of the Prime Minister as per Article 40(1) and 40(1A). Those precedents remain as binding law in Malaysia today.
Comments On The Powers Of The Yang Di-Pertuan Agong and The Offence Of Sedition
The corollary of the diverging opinions on the powers of the YDPA is however status quo. UMANY’s statement titled YDPA Should Not Interfere In National Affairs, ignited the passions of many individuals. Certain parties were strongly against UMANY’s view that the YDPA should not have rejected the Prime Minister’s proposal to proclaim emergency and advise members of the Dewan Rakyat to give support to Budget 2021. Their belief stems from the standpoint that the YDPA’s decision as the constitutional ruler should be respected and should not be questioned.
As a consequence, police reports were lodged on the basis that such views were offensive towards the constitutional monarch, with some reports stating that the post sought to incite hatred or discontent towards the monarchy. A part of those making reports have specifically demanded for the post to be investigated under S.4(1) of the Sedition Act. While the authorities have not yet stated whether they will proceed with investigations or whether they will do so under the Sedition Act, we believe that an understanding of the bounds of the Act will be of consequence to the later points to our discussion.
According to the Sedition Act, for an action to constitute an offence under S.4(1), the action must have seditious tendency as defined under S.3(1) of the Act. Among the instances that amount to seditious tendency are, when there is a tendency to bring into hatred or contempt or to excite disaffection against any Ruler or any Government as stated in S.3(1)(a); or to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any State or amongst the inhabitants of Malaysia or of any State, as stated in S.3(1)(d).
In Public Prosecutor v Ooi Kee Saik & Ors, FCJ Raja Azlan Shah (HRH, as he then was), stated that the dividing line between lawful criticism and sedition is, if upon reading the speech as a whole, the court finds that it was intended to be criticism with a view for reform, the speech is safe; however, if the speech used naturally has the tendency of stirring up hatred, contempt or disaffection against the government, or in this case the YDPA, then it is within the ambit of S.3(1)(a). Disaffection here would mean the absence of affection, enmity, disloyalty and hostility.
In Pendakwa Raya v Karpal Singh a/l Ram Singh, the appellant was charged with sedition for his comments on the Perak Constitutional crisis. During a press conference, Karpal had spoken of the limitations of the powers of the Sultan of Perak, among other things. The High Court held in favour of Karpal but the Court of Appeal overturned the ruling, asking him to enter defence. In 2016, the Court of Appeal decision on his defence, saw the upholding of his conviction. However, in 2019, the Federal Court posthumously acquitted him on grounds that the Court of Appeal had not considered his defences and had instead relied wholly on the 2012 Court of Appeal decision.
This case saw the use of S.3(2) as a defence against a sedition charge if the act, speech, words or publication was meant to only show that any Ruler has been misled or mistaken in any of his measures.
The court in Mat Shuhaimi bin Shafiei v Pendakwa Raya also expressed that in determining whether that which is published has seditious tendency, the court will take into account the impression that is imprinted in the mind after reading an article as a whole.
Notwithstanding these arguments, as students of law, we wish to acknowledge the long-standing attempts at challenging the constitutionality of the Sedition Act. The latest verdict on the matter is seen in the Federal Court case of Public Prosecutor v Azmi Sharom. It was decided that S.4(1) of the Sedition Act is valid and not in contravention of Article 10(2). The definition of ‘seditious tendency’ as outlined in S.3(1) paras (a) to (f) of the Act, was held to be consistent with the grounds enumerated in Article 10(2)(a) and 10(4) of the Constitution. It is also not a total prohibition as exceptions are provided in S.3(2) of the Act. It is regrettable that these pursuits have not won in the eyes of the Court, as they exist with merit, championing freedom of speech.
Everything considered, it is submitted that in the present instance, UMANY’s post may appear to be controversial, yet a full reading of the statement would reveal that it sought to express their opinions on the YDPA’s role and functions in a parliamentary democracy and constitutional monarchy based on their reading of the Constitution. Therefore, we believe their stance, seemingly controversially presented as it was, was an expression of the right to free speech and academic freedom.
Freedom of Speech, Academic Freedom and the Need for Academic Discourse
It is acknowledged that the fundamental right to freedom of speech and expression as enshrined in Article 10(1)(a) of the Constitution, is not an end in itself. To quote Azahar Mohamad FCJ in Syarikat Bekalan Air Selangor v Tony Pua Kiam Wee, “freedom of expression is not absolute. Indeed, freedom of expression and the responsibilities that come with it are enshrined in Article 10 of the Constitution.” Such responsibility may mean that when expressing opinions on controversial topics, such as that regarding the YDPA, a certain degree of sensitivity should be awarded. The exact degree of sensitivity in approaching topics such as this is, however not so well-documented, with status quo changing according to circumstance.
It is maintained that for an understanding of the nature of UMANY’s statement, a full reading is required to ascertain their stance. To disagree with their views after, is valid and within the rights of any individual.
The police reports made in response however imply the conviction that the publishing of academic opinion is one that may be sanctioned by the state. While individuals are within their rights to do so under S.107 of the Criminal Procedure Code, it is our view that lodging police reports does not set the healthiest precedence on the idea of what an appropriate, well-meaning response towards a disagreement in academic opinion should entail; especially so as we believe that there are multiple other avenues to respond.
The University of Malaya's issued statement condemning UMANY further raises questions in regard to the freedom for students to engage in passionate academic discourse especially as it was announced that investigations would be held against the body. The actions of the University in particular, enforce a view of Dr Mohd Tajuddin Rasdi. He opined in 2018, that there has always been a lack of real and effective academic culture of visionary thought, open discourse and critical observations of society in our country.
In the Indian case of S.Khushboo v Kanniamal & Anr, the Supreme Court highlighted the importance of freedom and tolerance. They also advanced the importance of freely flowing opinions and ideas to meaningful governance, stressing on the culture of open dialogue as that of great societal importance.
Academic discourse, as is significant to such a culture, will always invite differing views; for that is ultimately its purpose. Passion in discourse or varying opinion, however, is concerning when it bleeds into threats, be it through police reports or university investigations.
For far too long, the subsistence and the spirit of the Universities and Universities Colleges Act 1971 (UUCA) has imposed a tight grip on student autonomy. However, the case of Muhammad Hilman Idham & ors v Government of Malaysia & Ors should serve as a reminder that impositions of restriction on freedom of speech must always be reasonable. Quoting JCA Hishammuddin Yunus (as he then was), universities should be the breeding ground of reformers and thinkers, and not institutions to produce students trained as robots.
Such progress may certainly be hindered when academic freedom is faced against arbitrary university investigations. Hence, academic freedom, even if controversial in nature, should not be deterred. This is to ensure that students are not fettered from fully engaging in academic discourse. Nevertheless, we are of the strong opinion that there must always be a respect for evidence, impartial reasoning, and the academic freedom of others.
We stress on the importance of critical thought around any article, opinion or statement which makes it imperative that we fact-check and formulate our opinions based on research and critical analysis. The freedom of thought on one hand and the objective evaluation of the reader on another hand, are what will encourage literacy. It is with this practice, that we are able to have healthy discourse on important matters.
We believe that so long as views are expressed with the genuine intention to engage ideas, the avenues for such discourse should remain open. After all, it is common knowledge that any topic begins as one sensitive in nature, but as time passes, stigma erodes, more intelligent views on the matter may be formed and more civil conversations may be held. Hence, holding students to a restrictive standard in academic discourse serves only to diminish the freedom of thought, opinion and belief.
The UM Law Society believes that varying interpretations of subject matter should not be a reason for thoughts to be silenced. Academic pursuits are most progressive when individuals and bodies whose views are not aligned are able to respectfully pen or voice their thoughts, backed by sound reasoning; doubly so when this sensibility can be applied in discussing even the most sensitive of topics. We are of the view that this is the most ideal framework upon which the culture of critical thought, as is essential to students may grow.
UM Law Society
5 November 2020