Monarchy in Malaysia

8/9/2019 Monarchy in Malaysia

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"The monarch reigns but does not rule." Save for a limited number of situationswhere there is a margin of discretion, which discretion the Queen does notusually exercise, the British sovereign largely acts on the advice of herministers.

However, despite its largely figurehead role, the monarchy remains a symbol of

stability, continuity and national unity. The Queen is entitled "to advise, tocaution and to warn". It is known, for example, that in 1977 the British Queendelivered a speech that was interpreted by many as critical of the then LabourGovernment's devolution proposals for Scotland and Wales.

During Margaret Thatcher's time the Queen is known to have reminded her PrimeMinister that she (the Queen) was Head of the Commonwealth and was uncomfortablewith the PM 's policy of opposing sanctions against apartheid South Africa.

The monarch steps to the centre of the political stage in the crucial periodbetween the end of one government and the formation of the next. If generalelections do not lead to the emergence of a clear-cut winner, the sovereign'sdiscretion to choose a prime minister acquires critical significance. Severaltimes in the last century the British monarch had to exercise this discretion.

In other times of crises or unexpected constitutional problems, the Queen candetermine the country's fate.

Malaysian position

In our system of constitutional monarchy and parliamentary democracy, the Yangdi-Pertuan Agong is the formal head of the executive branch. A vast array ofpowers and functions is vested in him by the Constitution and by federallegislation. From the point of view of their nature, the functions can becategorised as follows:

* Executive functions

* Functions in relation to the judiciary* Functions in relation to Parliament* Functions in relation to Islam

On a literal reading of these laws the lay person would get the impression thatthe monarchy is the focal point of power in the country. Actually, the reallegal position is quite different.

The Yang di-Pertuan Agong is head of state but not head of government. He is therepository of vast authority and dignity but very little power.

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Save in some enumerated or extraordinary crisis situations when the monarch'spersonal discretion comes into play, the real wielder of political power is theprime minister.

This conclusion flows from the overriding rule in Article 40(1) and 40(1A) thatin the exercise of all his functions under the Constitution or federal laws, themonarch is required to "act in accordance with the advice of the cabinet or of aminister acting under the general authority of the cabinet".

Does this mean that the King is a mere cipher or mouthpiece of hisconstitutional advisers and has no personal discretion of his own? Law, politicsand constitutional history tell us that this is not so.

From the point of view of their exercise, the King's constitutional functionscan be classified under three heads:

Functions exercisable on prime ministerial advice Functions exercisable on the advice of persons and bodiesother than, or in addition to, the prime minister Discretionary functions.

In relation to all three categories, the King (and in the states, the Rulers)can be the moral and legal compass of the nation. They can play a significant,if subtle, role.

Through the Conference of Rulers, they can provide a much-needed check andbalance to the ever-expanding powers of the political executive.Host of formal functions for KingUNDER the Federal Constitution, the Yang di-Pertuan Agong isvested with an array of powers and required to perform a myriad ofconstitutional functions.

Most of these powers are not personal to the King and areexercised in accordance with the advice of the Prime Minister or other personsor bodies.In the executive sphere, the King has vast powers ofappointment.Cabinet ministers and deputy ministers, though chosen by thePM, are formally appointed by the King: Articles 43(1), 43(2) and 43A. UnderArticle 145(1), the Attorney-General is appointed by the King. So, too, are themembers of the Election Commission (Article 114), the Armed Forces Council (Article 137), the Judicial and LegalServices Commission (Article 138), the Public Services Commission (Article 139),the Police Force Commission (Article 140) and the Education Services Commission(Article 141A).Members of the Advisory Board who review representations madeby preventive detainees are appointed by the King under Article 151(2). TheChief of the Armed Forces (Article 137) and the Auditor-General (Article 105)are royal appointees.Along with the Kings power to appoint cabinet ministers ishis power under Article 45(5) to dismiss ministers other than the prime

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minister. The manner in which this power was wielded was the subject of a famousdispute in the case of Datuk Seri Anwar Ibrahim v Perdana Menteri Malaysia(1999).The plaintiff who was deputy prime minister and financeminister was dismissed from his cabinet posts. The letter of dismissal wassigned by the Prime Minister and not the Yang di-Pertuan Agong. The court heldthat in the matter of revocation of a ministers appointment, the King acts onadvice. The decision to dismiss is formulated by the PM and communicated to the

King. The King then instructs his servants or agents to inform the ministerconcerned.The fact that the PMs letter did not indicate that it waswritten at the behest of the King was of no consequence as long as the King wasadvised and informed about the decision. An affidavit indicated that this hadbeen done.The judicial decision upholding the sacking raised someeyebrows. But it must be pointed out that the power of the PM to dismiss acolleague is well entrenched throughout the Commonwealth and it is unlikely thatany court, anywhere, will stand in the way of this prime ministerialprerogative. In the UK, Mrs Thatcher, during her decade-long tenure as PM, wasknown to have dismissed several senior ministers, including her Chancellor ofExchequer, quite abruptly.

Members of commissions and councils appointed under theConstitution and employees in federal public services are also removable fromoffice by, or in the name of, the Yang di-Pertuan Agong.Under Article 41, the Yang di-Pertuan Agong is the supremecommander of the Armed Forces. Under Article 137(1), the Armed Forces Councilacts under his general authority. Under Article 151(1), the King receivesrecommendations from the Advisory Board in preventive detention cases.In times of national crises, the monarch has the power underArticle 150(1) to issue an emergency proclamation.The King has the power to determine which public authoritiesshall submit accounts to the Auditor-General: Article 160(2). He can declare anarea in a state to be a development area, thereby legalising federalintervention: Article 92(1).

Under Article 153, the King is the guardian of the privilegesof the Malays and of the natives of Sabah and Sarawak. At the same time he has aduty to safeguard the legitimate interests of other communities. He is thefountain of honour and has prerogative power to confer titles.The appointment of all superior court judges; their removal,retirement or suspension; and the appointment of the Judicial and Legal ServiceCommission are in the hands of the King.His Majesty has the power to grant pardons, reprieves andrespites.On any constitutional question, he can refer a matter to theFederal Court for the courts advisory opinion.The Yang di-Pertuan Agong is part of Parliament. He has theright to summon the Houses, address them, prorogue them and to dissolve the

Dewan Rakyat. Save for one exception, his assent is required before a Bill canbecome law. He can delay assent to Bills by one month. In times of emergency hehas power to make law through Ordinances.He has the power to remove disqualification from membershipof Parliament. He appoints the Clerks of the two Houses. He appoints 44 senatorsto the Dewan Negara.He receives and submits to the Dewan Rakyat the governmentsannual statement of receipts and expenditure and the Auditor-Generals report.The King is the head of Islam in eight regions his ownstate, Kuala Lumpur, Labuan, Putrajaya, Sabah, Sarawak, Penang and Malacca. Hepresides over the Council for Islamic Religious Affairs.Most of the above functions are not discretionary and are notpersonal to the King. He exercises them on the advice of the Prime Minister orother persons or bodies.The key provisions on the role of the Yang di-Pertuan Agongare Articles 40(1) and 40(1A). They provide that in the exercise of hisconstitutional functions, the King is required to act in accordance withadvice or on advice or after considering advice.

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This means that most of the powers of the Yang di-PertuanAgong are non-discretionary. In their exercise, the role of the King is purelyformal and symbolic.These powers and functions are in reality vested in the PrimeMinister of the day. His Majestys position is one of great authority anddignity but not of much power. The monarch is the de jure (legal) head ofstate but the PM is the de facto head of government.However, this does not mean that the constitutional monarch

is a rubber stamp, a mere cipher or mouthpiece of his constitutional advisers.His office has the potential of unifying and stabilising the country andproviding a subtle check and balance in government in a number of ways. Thepotential of the office to provide a moral compass is unlimited and unrealised.Dr Shad Faruqi is Professor of Law at UiTM.

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Monarchy in Malaysia

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