On Thursday, Shad Shaleem Faruqi, writing in his weekly newspaper column, said that Dr Mahathir was wrong to hold that the Yang di-Pertuan Agong had discretion to declare a state of Emergency, and that the NSC Act trespassed on the power of the King.
Over the past year, as part of their campaign to oust Najib Razak as prime minister, Dr Mahathir and opposition politicians have maintained that the powers accorded to the prime minister and the National Security Council amounted to the usurpation of the King’s powers.
Dr Mahathir said today in his blog that “this Act relegates the Constitution to the back burner. It is wrong of course. The Constitution, we all proudly declare is the Supreme Law of this great nation. But no one is going to do anything when it is breached.”
He claimed that “now the power of the Yang di-Pertuan Agong has become superfluous”.
He also claimed that Najib as chairman of the NSC had rights that were “far more numerous and superior by comparison with the rights and power of the Yang di-Pertuan Agong”
Dr Mahathir said there was a “need to let the Yang di-Pertuan Agong decide on the declaration of Emergency”.
However, on Thursday, Prof Shad had said that the Yang di-Pertuan Agong did not have the discretion to declare an Emergency on his own and must act on the advice of the prime minister.
(In a State of Emergency, the Constitution is suspended and the King may make law through Emergency Ordinances without recourse to Parliament.)
Prof Shad wrote that “unless a clause explicitly confers personal discretion, all references to the Yang di-Pertuan Agong in the Constitution should be interpreted to mean ‘Yang di-Pertuan Agong acting on advice’.”
He also took issue with Dr Mahathir’s contention that the NSC Act required the consent of the Rulers’ Conference, and pointed out: “Individual Sultans and the Conference of Rulers never had any power over emergencies” and cited precedent to show that “a law that impacts on the powers of the Federal King does not require the consent of the Conference of Rulers”.
Dr Mahathir, in his blog today, said he had been “forced to read through the Constitution of Malaysia and the National Security Council Act 2016” and that “I don’t think anyone would want to read through especially the National Security Council Act 2016”.
He said he had done so “in order to understand the need or otherwise of the power of the Yang di-Pertuan Agong and the Prime Minister in ensuring the security of the country”.
He summarised the powers accorded to the Prime Minister under the Act “by comparison to the powers accorded the Yang di-Pertuan Agong”.
He asserted that the powers of the Yang di-Pertuan Agong gave “due consideration to the rights and freedom of a citizen when he is to be detained” but that “the power of the Prime Minister under the National Security Act is almost unlimited”.
Dr Mahathir claimed that the NSC Act dispensed with the need for Najib, as NSC chairman and prime minister, “for reference or approval of the Yang di-Pertuan Agong”.
However, Prof Shad had said “the grounds of challenge against the NSC Act mentioned by Tun Mahathir may not be sustainable in law” but also pointed out the need for fuller discussion of potential violations of fundamental rights.
Prof Shad had pointed out that Dr Mahathir had earlier pushed through Parliament a constitutional law that would give the prime minister the power to decide on issuing a Proclamation of Emergency, and which required Yang di-Pertuan Agong to issue the Proclamation accordingly.
However the 1983 amendment came under strong opposition from the Conference of Rulers and was consequently repealed in 1984.