Friday, July 8, 2011

Law experts say King acted constitutionally over Bersih

July 08, 2011

KUALA LUMPUR, July 8 — Two constitutional law experts weighed in today in support of the Yang di-Pertuan Agong’s unprecedented remarks over the Bersih 2.0 affair, saying the King had acted in line with his limited powers under the nation’s highest law.

The Malaysian Insider reported earlier today that some Umno politicians, including those in Cabinet, were upset by Tuanku Mizan Zainal Abidin’s decision to grant an audience to Bersih 2.0 chief Datuk Ambiga Sreenevasan last Tuesday, arguing that it is outside his constitutional powers.

Government officials also confirmed that there was much toing and froing over the draft of the King’s statement between the palace and the Najib administration before Istana Negara issued what amounted to measured advice late Sunday.

“The King has the right to be kept informed concerning matters about the nation,” said prominent constitutional lawyer Tommy Thomas, responding to criticism against the King’s seemingly independent move to meet with Ambiga.

The King rarely issues political statements, which was why many people were surprised by Tuanku Mizan’s proclamation.

Citing Article 32 of the Federal Constitution which deals with the Yang di-Pertuan as the “supreme head of the federation”, Thomas explained that there is a convention for a weekly audience between the prime minister of the day and the King, to keep the King updated on government affairs.

“The King as supreme head of the federation, speaks for the entire nation. The prime minister of the day is always partisan whereas the King is above party politics. And there’s nothing wrong with the King meeting with any of his subjects to find out what’s going on in his country,” he told The Malaysian Insider.

A former member of the Bar Council, Thomas said that Britain’s constitutional monarch also practises a similar approach in England where it is known as “soundings”; he said Queen Elizabeth II always talks with professors and famous personalities in order to be kept informed about current affairs.

“In that context, what’s wrong with the King meeting Ambiga or for that matter Nicol David, as they are his subjects and he is their King?” Thomas quizzed.

“After inviting her to the palace, he can say, ‘Look, this is my advice ...,’ in a sort of fatherly way, and it is up to Ambiga to say ‘I accept’, or reject it. The King has no real power as he is a constitutional monarch.

“To say the King cannot give advice or talk to anyone is wrong,” Thomas stressed.

Law lecturer Abdul Aziz Bari backed Thomas’ opinion that Tuanku Mizan had acted constitutionally when he intervened.

“The constitutional principle is simple and clear: The King is only under duty to act on the government’s advice when this is in line with both the letter and the spirit of the Constitution.

“If the advice is against the Constitution, the King is not bound by that advice. Arguably, it is even a duty on the part of the King to ignore the advice if it has the potential of undermining the Constitution,” he said, adding that the King’s duty to act is subject to exceptions.

“Now with regard to the issue at hand, the King had acted rightly and properly. It is his duty to make sure that there is a free and fair election,” Aziz said, before highlighting Article 114 (2) of the Federal Constitution: “In appointing members of the Election Commission the Yang di-Pertuan Agong shall have regard to the importance of securing an Election Commission which enjoys public confidence.”

The law lecturer at the International Islamic University Malaysia (IIUM) added that the ruling Barisan Nasional (BN) government had been “acting to undermine the Constitution” for the past one week through public institutions, including the police, who have arrested some 250 Bersih 2.0 supporters, and ignoring Article 10 on freedom of speech, assembly and association.

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