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What if Eusoff, Hamid sit on royal commission?

In Malaysiakini report, Lingam tape: Cabinet yet to decide, says Nazri , de facto law minister Nazri Aziz said, "Whatever it is, whether in the Federation of Malaysia or the states, the king and the sultans are part of the government. We are an inseparable entity".

If so, it is well nigh possible that the government may accept a royal commission if really proposed by the Haidar panel.

Civil society, NGOs and practically everyone lobbying for a resolution of the so-called "judicial crisis" have called for the establishment of a royal commission by the Yang di-Pertuan Agong based on the assumption that the commission will comprise respectable jurists, leaders of retired legal and civic organisations or distinguished ex-judges or lawyers who are independent of the ruling government's influence. But is this fundamental assumption valid?

The Agong's prerogative to act according to personal discretion appears under Article 40 of the Federal Constitution to be confined to only three areas:

  1. the appointment of a prime minister commanding majority confidence of the Dewan Rakyat

  • withholding of consent to a request for the dissolution of Parliament and
  • the requisition of the Conference of Rulers meeting solely concerning issues pertaining to the privileges, position, honours and dignities of our rulers, of which the appointment of the members of the royal commission is not one of these three.
  • Except for these three areas, the Agong's discretion in all other matters is subject to "advice" of the cabinet or of a minister acting under the general authority of the cabinet. Wouldn't then the Agong's appointment of royal commission members fall under the latter general category requiring the government's advice?

    Case in point is the royal commission that investigated the beating of Anwar Ibrahim in police custody by the now-resigned inspector-general of police Abdul Rahim Noor. Weren't the members of that earlier commission, including its chairman, ex-chief judge of Malaya Anuar Zainal Abidin and ex-attorney-general Abu Talib Othman, officially appointed by the Agong on the advice of the then premier Dr Mahathir Mohamad?

    To argue that the Agong has residual powers relating to appointment of the royal commission's members independent of the government's advice is at best contentious since it implies that such discretion will then be exercised outside the four corners of the constitution, which is only cogent if the Agong were an absolute and not constitutional monarch.

    Everything will repose on how independent from executive influence are these members to be appointed to the royal commission, if it were to be established.

    If the Agong were constitutionally required to appoint royal commission members based on the government's advice, wouldn't it be Shakespeare's 'Much Ado About Nothing' for a transition to be made from the Haidar panel to a royal commission where the government could (for the sake of the dramatisation of a point of argument here) advise the same members of the Haidar panel to be re-appointed royal commissioners together with (say) two more ex-chief justices, Eusoff Chin and Hamid Omar?