Rulers can rely on ‘doctrine of necessity’ to stop decline, say lawyers

PETALING JAYA: The Yang di-Pertuan Agong and the Malay rulers have acted in the spirit of the Federal Constitution to “arrest a situation in the country from declining”, a constitutional lawyer said.

Dominic Puthucheary said the hereditary rulers also did not enter into the political arena as they were mindful of their roles as constitutional monarchs in a parliamentary democracy.

“They were acting to uphold the spirit of the constitution and prevent the situation in the country from declining. Without the constitution, the system will be abused,” he told FMT.

Puthucheary said this in response to a statement by Gua Musang MP Tengku Razaleigh Hamzah, better known as Ku Li, that the King had the right to interfere and had “acted on the principle of necessity which is within a living constitution”.

The Kelantan prince, and the longest serving MP (since 1974), said this during the launch of a petition to urge the public to support a move to see Parliament sit before the emergency ends.

The King had convened a special meeting with the Malay rulers on June 16 to discuss the emergency and the fight against Covid-19.

Istana Negara later said the King wanted Parliament to be reconvened as soon as possible to allow for the emergency ordinances and national recovery plan to be debated by MPs.

The rulers also issued a joint statement saying the emergency should not be extended beyond Aug 1.

Puthucheary, a former Nibong Tebal MP, said the doctrine of necessity was applicable in the unusual circumstances that had arisen.

“When there is no obvious remedy available in the constitution, then you must act to save the constitutional system,” he said.

He said that under Article 43(3), the Cabinet must be collectively responsible and accountable to Parliament at all times, including during an emergency.

“All MPs in the Dewan Rakyat and (senators in) the Dewan Negara must always remember their oath of office and allegiance to preserve, protect and defend the Constitution,” he added.

Lawyer Bastian Pius Vendargon said the constitution remained the supreme law of the federation and the emergency proclamation and ordinances promulgated were subservient to the constitution.

“The principle of constitutional laws must be read in the correct spirit and intent. The supremacy of the constitution must be maintained and yet it should give sufficient room for the executive to use ordinances to address the Covid-19 pandemic,” he said.

He said this doctrine had been applied in the sphere of constitutional jurisdiction and Westminster-style constitutions such as that in India, Pakistan, Granada and the province of Manitoba in Canada.

“These give a lot of guidance on how the doctrine can be of assistance to break a deadlock,” he said.

Lawyer Muhammad Rafique Rashid Ali said the rulers could rely on the doctrine to interfere into the business of the government to overcome the pressing economic, health and political crisis. – FMT

by V Anbalagan

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