Engineering logic, technical reasoning and the Constitution

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ON Sunday, the Deputy Minister for Energy and Natural Resources, made known his qualification as an engineer, and used his engineering logic, to support the call for a Proclamation of Emergency to be declared. Or so it has been reported.

Short of calling the Deputy Minister to verify, I can only quote what has been reported.

Apparently, he said as a trained engineer his profession has taught him to have “a fail-safe pause or emergency button” to be built into any device. And thus, it seems the Constitution must also function as a machine with this useful pause or emergency button.

And further, listen to this: “And So Tommy’s legal language simply defies the rational logic of an engineer.”  I hope the good Deputy Minister has been misquoted.

“Tommy”, of course is none other than Tan Sri Tommy Thomas, the country’s previous Attorney-General.

“Tommy”, I can safely assure you, does not have an engineering degree. He has law degrees and to my knowledge years of legal experience.

I should think he is eminently qualified to comment on the constitutionality of the attempt to have a Proclamation of Emergency made under Article 150 of the Federal Constitution.

The Deputy Minister, I think, does not have a law degree or is legally qualified. So, there is no need really to entertain this “interesting” principle of “pause/ emergency button” constitutional interpretation. We can leave it at that.

Today, however, we have constitutional pundits, very legally-qualified, coming to the fore ( move aside, Ali Biju) to argue ( if in court, “submit”) the Yang di-Pertuan Agong has no discretion to refuse the advice of the Cabinet to issue a Proclamation of Emergency under Article150 (1).

The arguments get slightly technical. Lawyers thrive on technicalities so much so sometimes we fail to see the wood for the trees. If we are in court, these arguments can easily take up approximately three full days. If a very senior counsel is arguing, it might take three months or more, what with copious citations from case-law, local, Indian, the Commonwealth and what else.

I don’t propose to entangle the reader with the “trees”. Let’s look a the “wood”, the general, big issue at hand.

Is the Federal Constitution so static that the Yang di- Pertuan Agong must agree with an advice given when that advice is based on an implausible basis? Extend the argument further. What if the advice itself is questionable? Is the answer in the Federal Constitution that simple?

The Yang di-Pertuan Agong has no discretion? He must agree no matter what. It this what constitutional monarchy is about? Are we forgetting the role of the constitutional monarch as a moderating influence in the intricate system of checks and balances that comprise the basic principles of the Constitution?

But, some will say look at the case law. Look at the learned commentaries. They say the Agong must act strictly according to the advice of the Cabinet or a Minister authorized by the Cabinet. These commentators are still clinging on to the “trees” which by now are very “old” and “dated”. The Constitution is a living document. It must be interpreted accordingly in a dynamic and progressive manner anchored on its basic principles.

So, if in Article 150(1) it says “if the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency…”, there is an element of discretion, a residual discretion to the general rule that in normal cases the monarch is expected to act in accordance with the advice of the executive. There is nothing in Article 40(1) or (1A) to obliterate this residual discretion.

Look again at the wording of Article 40(1) and the general heading “Yang di-Pertuan Agong to act on advice”. What does it exactly say?  In the exercise of its functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, EXCEPT AS OTHERWISE PROVIDED BY THIS CONSTITUTION…” One of the exceptions stares at us in the face in Article 150(1).

What about Article 40(1A)? This amendment which came in the wake of other amendments on the breadth of the royal assent to legislation, refers to the “exercise of his functions under this Constitution or federal law, the Yang di-Pertuan Agong is to act in accordance with advice…”, where is that “federal law” to compel the Agong to act on the advice in the context of Article 150(1)?

So, when the Federal Constitution is properly appreciated and neutrally interpreted based on its technical wording, its underlying purposes, its dynamic structure and consciousness that it functions as a high instrument to regulate raw politics sometimes carried to an excess, the decision by our constitutional monarch to refuse the advice to proclaim an Emergency has a sound constitutional basis.

It has nothing to do with engineering principles, Yang Berhormat Timbalan Menteri Ali Biju.

Tan Sri Ariff Yusof
26 October 2020

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