Is Malaysia's NSC Act (2016) invalidated by Article 66(6) of the Malaysian Constitution ? Should the NSC Bill have even been presented to the Agong?

by Ganesh Sahathevan

Malaysia's  National Security Council Act 2016 is now law, without the  royal assent. This is of course provided for by Article 66(4A) of the Malaysian Constitution, which states:


(4A) If a Bill is not assented to by the Yang di-Pertuan Agong (King) within the time specified (30 days) in Clause (4), it shall become law at the expiration of the time specified in that Clause in the like manner as if he had assented thereto

However, should the then National Security Bill have even been presented to the Agong, for Article 66(6) provides: 

(6) Nothing in this Article or in Article 68 shall invalidate any law confirming an undertaking given by the Federal Government to the effect that a Bill to which the undertaking relates shall not be presented to the Yang di-Pertuan Agong for his assent except in accordance with the undertaking

There is not much said anywhere about Article 66(6) but seen in the context of Malay norms and customs, it does seem to be a provision to ensure that the King's authority will not be challenged by Parliament , via a Bill that may undermine his powers and status. It would seem that this is what is implied by the phrase undertaking given by the Federal Government  in Article 66(6). 
Indeed, much of the negotiation between the rulers and the Federal Government over the past 30 or so years has been underpinned by undertakings given the rulers by the Government with regards their special privileges and powers (see NY Times article below)

The NSC Bill appears to be a law which infringes upon the King's powers to declare an emergency, or more accurately, his powers to safeguard "the security, or the economic life, or public order in the Federation or any part thereof" as provided by Article 150: 
“If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect”

A  concise discussion on the powers of the King pursuant to Article 150 has been provided by Shad Saleem Faruqi and can be found at this link.

Consequently, could the NSC Act be declared invalid on the basis that it should not have even been presented for Royal Assent? Could then the argument be made that the King was right to ignore or not recognize  the Bill , let alone  deny royal assent?

The counter argument that the Royal Assent is in any case irrelevant given the provisions of Article 66(4) is easily rebutted for the Article and indeed the Constitution remain rooted in the concept of the royal assent, even if it be diluted.

END 

IN MALAYSIAN BATTLE ROYAL, THE SULTANS GET A DRAW

By ROBERT TRUMBULL

Published: January 14, 1984

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KUALA LUMPUR, Malaysia, Jan. 11— Malaysians relish telling foreign visitors that their country, though a relatively small power with 14 million people, has nine hereditary sultans who constitute nearly one-third of the world total of reigning royalty.

For more than five months, the sultans, among them Malaysia's King Ahmad Shah, have been at the center of a bruising constitutional struggle over their powers. The struggle ended this week in a compromise that left both sides claiming victory.

Under an amendment to the charter approved by the lower house of Parliament on Monday and by the upper house the next day, the King loses the right to veto new laws by withholding his assent, which had been routinely given until the constitutional dispute arose last August. But he gains new power to delay and, apparently in some circumstances, to kill future legislation.

Backed Away From Changes

Meanwhile, the Government of Prime Minister Mahathir Mohamad backed away from proposed constitutional changes that would have curtailed the authority of the sultans, who rule 9 of the country's 13 states and elect one of their number every five years to be King of all Malaysia for the next five years.

The Government also abandoned a proposed amendment that would have taken away the King's power to declare a national emergency and given it instead to the Prime Minister, a change that critics said could tempt some political leader to become a dictator.

These governmental actions were forced by the sultans, who invoked a constitutional provision that their status and privileges cannot be changed without their consent. Legal experts say there is no way for the Government to trim the sultans' powers unless they agree.

Political sources, including some in the Prime Minister's party, the United Malays National Organization, said that they thought the move against the hereditary rulers had been a mistake and that it might have clouded Mr. Mahathir's political future, at least temporarily. Historical Role of Sultans

They said the move appeared to have been a violation of such national sensitivities as the widespread reverence for the historical role of the sultans as the living symbols of Malay identity, as spiritual leaders of Islam, the religion of the Malay majority, and as the protectors of the Chinese and Indian minorities in their states.

The sultans are a highly visible group who appear at state ceremonies in resplendent regalia, mixing Malay and European dress, bedecked with medals and decorations.

Historians say the sovereignty of the sultanates was legally affirmed during British colonial rule about a century ago, when the House of Lords, functioning as the highest court of the realm, dismissed a British woman's breach of promise action against a visiting Sultan of Johore on the ground that, as a sovereign ruler, he could not be sued.

Sultans today, under the Constitution of an independent Malaysia, are also immune from prosecution. The present Sultan of Johore, when only a prince, was convicted of culpable homicide for shooting a policeman, but was pardoned by his father. Premier Challenged Prerogatives

Mr. Mahathir, the first of Malaysia's four Prime Ministers to have been born without a title, challenged the royal prerogatives last Aug. 1 by introducing the amendments in Parliament. The Prime Minister was believed to have acted because of the prospect that either the Sultan of Johore or the Sultan of Perak, both known to be strong- willed men and sticklers for royal prerogatives, would be elected as the next King in April.

At the beginning of the constitutional struggle, the Government instructed editors in Malaysia to refrain from publishing any news accounts of the proposed amendments, and the editors complied. But secrecy was short-lived in the political storm that erupted as the King and the sultans invoked their prerogatives and refused to assent to the amending legislation.

The compromise that resulted from the constitutional struggle was an agreement to give royal assent to the new amendment, which allows the King to delay legislation for 60 days but which provides that bills can become law without the King's signature after six months if they are passed by a two- thirds majority. Such a majority is assured under the present one-party control of Parliament. 'A Backward Step'

Lim Kit Sian, the leader of the opposition, said the new arrangement was ''a backward step, giving the King a responsibility in the legislative process that he never had before.''

One of the proposed amendments that was blocked would presumably have ended such royal powers as the one once exercised by the Sultan of Perak when he vowed not to shave a newly grown beard until the chief minister of his state resigned. This the official eventually did.

Stymied by the resistance of the sultans in what is known here as the ''battle royal,'' Prime Minister Mahathir undertook to rally public support for constitutional change through a series of mass meetings around the country. The crowds were often large, but the response was reportedly mixed.

As the constitutional struggle came to an end, the Prime Minister turned to preparing for an official visit to Washington next week.

Malaysia's first Prime Minister, Abdul Rahman, who is a brother of the Sultan of Kedah and a revered elder statesman, said in his weekly column in The Star, a Kuala Lumpur newspaper, that news of the constitutional struggle had ''caused a shock throughout the nation.'' 'Vested Interest in Stability'

''The Government made the mistake of taking the rulers for granted,'' Tan Chee Khoon, a political expert said in a newspaper article that expressed approval of the Prime Minister's intention in trying to curb royal powers but deplored his approach as confrontational.

A similar view was voiced by Dato Senu, a former secretary general of the Prime Minister's party.

''The sultans have a vested interest in stability and peace,'' Mr, Senu, a former Ambassador to Indonesia and now a businessman, said in an interview. ''I am for the rulers not because I like them but because without them the country could go to pieces.''