The Book of Prof Shad.docx

Dissolution there is no cabinet in existence to

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dissolution there is no Cabinet in existence to advise the Monarch, then the King is empowered to issue a Proclamation of Emergency on his own. Even if a caretaker government is in place, the caretaker governments’ advice on national emergencies is not binding on the Yang di-Pertuan Agong. This judicial view has some merit but the weight of prior authority points the other way. In Madhavan Nair v Government [1975] 2 MLJ 286, Chang Min Tat J held that “emergency rule which passes the legislative power from Parliament to the Yang di-Pertuan Agong has not displaced his position as the Constitutional Monarch, bound by the Constitution to act at all times on the advice of the Cabinet”. In Teh Cheng Poh v PP [1979] 1 MLJ 50, Lord Diplock summed up the constitutional position most adequately: “When one finds in the Constitution itself or in a Federal law powers conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affairs exists or that particular action is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the Cabinet, or the opinion or satisfaction of a particular Minister … “. Reference may also be made to similar opinions in Stephen Kalong Ningkan v Tun Abang Haji Openg (No. 2) [1967] 1 MLJ 46; Balakrishnan v KP Perkhidmatan Awam [1981] 2 MLJ 259; Merdeka University v Government [1982] 2 MLJ 243; Stephen Kalong Ningkan v Government [1968] 1 MLJ 119; Abdul Ghani Ali @ Ahmad v PP [2001] 3 MLJ 561; Karam Singh v Menteri [1969] 2 MLJ 129. In the light of the above, it is submitted that the proclamation of emergency by the King is not free of the constitutional requirement to act in accordance with the advice of the Prime Minister under Article 40(1). Article 150(1) must be read along with Article 40(1). The Yang di-Pertuan Agong’s power to declare emergency is not a discretionary power. The power to declare emergency is a federal power. It belongs to the Yang di-Pertuan Agong and not to the State Sultans or Governors. Territorial application: His Majesty can declare emergency throughout the federation or in any one or more parts of the country. Four emergency proclamations have been issued since Merdeka. The first was on September 3, 1964 due to the confrontation with Indonesia. This was a nation-wide emergency. The second was on September 14, 1966 in Sarawak because of the political deadlock between Chief Minister Stephen Kalong Ningkan on the one side, and the State Assembly and Governor Tun Abang Haji Openg 88
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on the other. The third was issued on May 15, 1969 due to the May 13 th racial riots. This emergency proclamation applied throughout the country. The fourth was in Kelantan on November 8, 1977 as a result of the collapse of Dato’ Mohamed Haji Nasir’s government.
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