The Malaysian Insight

IF Pakatan Harapan wins the coming election and hopes to remain in power, it will need the King to have his old powers of assenting to laws.

Otherwise, opposition politicians fear, Putrajaya could invoke the sweeping powers in the National Security Council (NSC) Act, which came into force without royal assent, and suspend Parliament.

This point was made by constitutional expert Dr Abdul Aziz Bari  in response to a move by opposition leader Anwar Ibrahim, who filed an application at the Federal Court earlier this week to nullify three laws that were passed without the assent of the Yang Di-Pertuan Agong.

He said the opposition coalition had always been worried about possible abuse of the vast powers granted to the federal government under the National Security Council (NSC) Act.

“This court action is important for PH, because it is expected that (Prime Minister) Najib Razak will use it to prevent PH’s victory in the elections.

“He may declare an emergency if PH wins. This is PH’s concern,” he told The Malaysian Insight.

The NSC law, which was passed by Parliament in December 2015 and came into force in February 2016, allows the prime minister to designate any area as a security zone, where he can deploy forces to search any person, premises or vehicle without a warrant.

Critics have also feared that the NSC Act would threaten human rights and democracy, and be used by the government to silence critics.

Civil society groups, like Aliran, have accused the NSC Act of being tools to protect  “the political security of the scandal-ridden Najib administration and of the prime minister himself”. 

Anwar had failed in his previous attempt to declare the NSC Act unconstitutional when the Court of Appeal unanimously dismissed his suit in November last year.

The jailed PKR leader is now seeking leave under Article 4(4) of the Federal Constitution to question the validity of amendments made in 1983, 1984 and 1994 that removed the King’s powers to give the final approval for bills passed by the Dewan Rakyat.

‘Constitutional ammendment invalid’

The amendments were made when Dr Mahathir Mohamad was prime minister and Anwar was his deputy. Both men are now leaders in PH, which has been mounting a reinvigorated campaign to unseat the ruling Barian Nasional led by Najib.

“Anwar, as deputy prime minister, was directly involved when the amendment was made. I remember that Anwar himself had tabled it.

“That was the past, and now it has come back to ‘strangle’ him (Anwar),” Aziz said.

The constitutional expert, who is a DAP member, said he had been speaking out against the amendment since 1994, but no attention was given to his arguments.

He said the court could nullify the amendment with grounds.

“I have long said the amendment was invalid, ever since the 90s. I still say the same. At least I am glad that there are people who agree with my arguments (now),” he said.

The Dr Mahathir-led administration amended the Federal Constitution in 1994, without referring to the Conference of Rulers as required, making it such that any bill approved by Parliament would automatically become law even without royal assent after 30 days.

In 1983, a bill was tabled to insert a new clause in the constitution to provide that any bill not assented within 15 days of being presented to the King would automatically become law. The time limit also applied to state rulers.

The Conference of Rulers vetoed the bill, which led to a constitutional crisis until a compromise was worked out between the government and the sultans.

The Constitution (Amendment) Act 1984 then enabled the King to object to a bill, but still provided for the government to ultimately bypass the King in the legislative process.

The King was given 30 days to consider the bill, and the right to return it to the House with written reasons for his objections. The King could delay the bill for another 30 days, but if he still refused to give his assent, the bill would be passed.

But in 1994, Article 66 of the Federal Constitution was amended again with the provisions for the King to send his written objections and a second 30-day period to consider the bill repealed. The bypassing procedures were also extended to state rulers.

The amendment allows the King and state sultans only 30 days to give assent, after which the bills presented to them will become law.

‘Dr Mahathir, Anwar should not be blamed’

Because of this, the present administration was able to pass the NSC Bill without the King’s assent in June 2016, a time when Najib was under heavy fire over the 1Malaysia Development Bhd scandal.

In the past, Dr Mahathir had apologised for taking out the King in the legislative process, allowing the NSC Act to be passed automatically.

“I apologise for the amendment…it can be seen that due to the amendment, the new NSC Act has come into force without the King’s assent,” he wrote in a blog post in 2016. 

However, Anwar’s lawyer N. Surendran, who filed the application, said both Dr Mahathir and Anwar could not be blamed now because it had been a collective decision to amend the Constitution.

He said the amendment was not following an individual’s decision, and pointed out that Najib was also a member of the cabinet as defence minister at the time.

“Anwar filed the application to correct the situation,” he told The Malaysian Insight.

‘Challenge unlike to be successful’

If Anwar’s application is successful, the King’s power to grant royal assent to pass laws will be returned, but Aziz is sceptical of Anwar’s chances in winning the case.

He said he does not think the Federal Court would nullify the amendment.

“I am not confident. Not with the current line-up of judges. They are Najib’s lifeline. To go against Najib is not impossible, but it will be a great undertaking. 

“Technically, you can challenge the amendment, like, (questioning) why was it done in haste. But will the Federal Court dare to do it?

“If the court dares to go that way, there are many laws that can be deemed as lifelines for Najib, and should be nullified or repealed. But is there courage to do that?” Aziz said. – January 5, 2018.