Federal Court, the ultimate adviser

The report “‘Derhaka’ has no place in constitution or modern state, politicians told” appears to be the latest to dwell on the advice to the Yang di-Pertuan Agong (the king) regarding the emergency.

The report cites former Federal Court judge Gopal Sri Ram, reported to be one of Malaysia’s most senior constitutional experts – undoubtedly. But it reminds me of the case of the constitutionality of the advice by British Prime Minister Boris Johnson to prorogue Parliament.

On Aug 27 or 28, 2019, Johnson advised Her Majesty the Queen that Parliament should be prorogued from a date between Sept 9 and 12 until Oct 14, 2019. On Aug 28, Parliament was prorogued following a meeting of the Privy Council. Prorogation is a prerogative power exercised by the Crown on the advice of the Privy Council (read: prime minister).

The prime minister’s decision to prorogue Parliament was challenged in two sets of proceedings, one in Scotland (“the Cherry case”) and one in England (“the Miller case”). On Sept 4, 2019, the Scottish Court of Session refused the petition in the Cherry case, on the grounds that the issue was not justiciable in a court of law. The petitioner appealed.

The English High Court also dismissed the claim in the Miller case on the grounds that the issue was not justiciable. It accepted the government’s submission that the courts should not enter the political arena but should respect the separation of powers. It held that the prime minister’s decision that Parliament should be prorogued at the time and for the duration chosen, and his advice to Her Majesty to that effect, were inherently political in nature, and there were no legal standards against which to judge their legitimacy.

The High Court’s judgment was delivered on Sept 11, 2019. On the same day, the Scottish appellate court delivered its decision that the petitioners’ appeal in the Cherry case would be allowed. It held that the advice given to Her Majesty was justiciable, that it was motivated by the improper purpose of “stymying” parliamentary scrutiny of the executive, and that it and the prorogation which followed it were unlawful and thus null and of no effect.

The advocate general in the Cherry case and the claimant in the Miller case appealed to the UK Supreme Court. Both cases raised the same issues: (i) whether the prime minister’s advice to the Queen was justiciable in a court of law and, if it was, by what standard its lawfulness was to be judged; (ii) whether, by that standard, it was lawful; and (iii) if it was not, what remedy the court should grant.

The Supreme Court heard both appeals from Sept 17-19, 2019. The Supreme Court heard oral submissions, and read written submissions, from the principal parties – some of whom were themselves barristers and Queen counsels (senior lawyers). In addition, the court also had written and oral submissions from the lord advocate, for the Scottish government; from the counsel general for Wales, for the Welsh government; and from John Major, a former prime minister with first-hand experience of prorogation. The court also received written submissions from Baroness Chakrabarti, then shadow attorney-general for Her Majesty’s opposition, and from the Public Law Project.

In view of the grave constitutional importance of the matter, and the disagreement between the courts in England and Wales and Scotland, the Supreme Court convened a panel of 11 lord justices (judges) – including the president and deputy president of the court– the maximum number of serving justices who are permitted to sit.

Simply put, it was an assembly and a sitting of the best legal minds in the UK.

Reading the judgment of the court, Lady Hale, president of the Supreme Court, and Lord Reed, the deputy president (who has since succeeded Lady Hale), said:

“Although the UK does not have a single document entitled ‘the constitution’, it nevertheless possesses a constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development.

“Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits.

“The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context.”

On that note, the Supreme Court unanimously allowed the appeal in the Miller case and dismissed the appeal in the Cherry case for the reasons that:

(1) the decision of the prime minister was justiciable;

(2) the prime minister’s decision was unlawful as having the effect of frustrating or preventing the constitutional role of Parliament in holding the government to account and there had been no reasonable justification for the action which had such an extreme effect upon the fundamentals of democracy; and

(3) the prime minister’s advice and the actual prorogation to which it had led were unlawful, null and of no effect.

The above informs us that the courts are the arbiters of contesting and opposing opinions, with the apex court the final arbiter. There must be one final arbiter.

The Federal Constitution indeed provides a direct route to this final arbiter.

Article 130 allows the king to refer to the Federal Court for its opinion on any question as to the effect of any provision of the constitution which has arisen or appears to him likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it.

So, the AG may be the king’s legal adviser [Article 145(2)] and Sri Ram may be Malaysia’s foremost constitutional expert who agrees with the advice of the AG.

But the Federal Court has advisory jurisdiction on the legal effect of any provision of the constitution. The court’s opinion is what matters, ultimately.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.