What is Constitutional Monarchy?

By Hakim Joe

There are actually only three types of government in this world, anarchy, autocracy and democracy. The rest falls under these forms in one way or another. Anarchy is rule without a government, Autocracy might infer to rule by one as in absolute monarchy or dictatorship and Democracy is rule by majority. 

Malaysia adopted the Constitutional Monarchy form of government when she achieved independence from the British, much like her former colonial masters where the Queen is a ceremonial Head of State and the Parliament forms the basis of executive legitimacy. Over here, the Yang di-Pertuan Agong is the ceremonial Head of State and the people democratically elect the Parliament whereby the PM becomes the active Head of the executive branch of government. The only visible difference between UK and Malaysia is that in UK, the position of the Head of State is hereditary from the Tudor family whereby in Malaysia, the 9 hereditary State Sultans take turns becoming the Yang di-Pertuan Agong for a period of 5 years. One other important dissimilarity is that the UK constitution is uncodified whereas the Malaysian constitution is codified. 

Constitutional Monarchy can also be characterised as a form of government where the Head of State’s powers and authority is defined in the constitution and limited by the elected Parliament as opposed to Absolute Monarchy where the Head of State has absolute unquestionable power, even to the extent of being above the Law. 

In Malaysia, the form of Constitutional Monarchy also applies to the Sultans. So, what are these authority and limitations specified within the constitution here in Malaysia? 

1. The government cannot arbitrarily alter the boundaries of the states. Only the Sultans have that privilege (Article 2).
2. The Sultans are automatically the Head of Religion within their own States and the Yang di-Pertuan Agong is the Head of Religion for the entire country including the States without Sultans and the Federal Territories (Article 3).
3. The Agong shall be the supreme Head of the nation, subjected to constitutional limitations (Article 32).
4. The Agong shall enjoy total immunity from Law except specifically charged by a Special Court (consisting of the CJ, High Court judges plus 2) with prior approval from the AG. This applies to all the Sultans as well (Article 32 and Article 182).
5. The Agong gets to keep and use the Public Seal of the Federation. (Article 36)
6. The Agong possesses the power to pardon, grant reprieves, remitting, suspending or commuting sentences of convicted persons (Article 38 and 42), under the advice of the Pardon Board.
7. The Agong can exercise the executive authority as Head of State, subjected to existing federal laws (Article 39) and on advices from the Cabinet (Article 40).
8. The Agong gets to choose who he wants as the PM from a list submitted by the winning political party if he does not like the leader of the winning party (Article 40). This applies to all the Sultans as well. The constitution however does not afford him the right and authority to dismiss the PM or the MB.
9. The Sultans and Agong can dismiss or withhold consent to a request for the dissolution of Parliament (Article 40).
10. The Agong is authorised to call a Conference of Rulers any time HRH desires but the agenda of this meeting is limited to discussions dealing solely with the privileges, position, honours and dignities of Their Royal Highnesses (Article 40).
11. The Agong gets to be the Supreme Commander of the Malaysian Armed Forces (Article 41).
12. The Agong can only dissolve the Parliament at the request of the PM (Article 43).
13. The Agong gets to appoint Ministers and Deputy Ministers subjected to advice from the PM (Article 43).
14. The Agong gets control over the legislative authority of the country together with the Senate and the House of Representatives (Article 44).
15. The Agong also gets to nominate 40 members to the Senate (Article 45).
16. The Agong also gets to be the timekeeper whereby HRH shall not allow six months to elapse between the last sitting in one session and the date appointed for its first meeting in the next session (Article 55).
17. The Agong gets the prerogative to address the Senate and the House of Representatives either singularly or jointly (Article 60).
18. Unless HRH advocates the abolition of the constitutional position of the Yang di-Pertuan Agong as the Supreme Head of the Federation or the constitutional position of the Ruler of a State, the Agong may pretty well be able to say just about anything he wants and not be liable in Court. (Article 63).
19. The Agong also gets to nominate the Senate Clerk and the House of Representative Clerk (Article 65).
20. The Agong however does not get the opportunity to reject any new laws or amendments to existing laws because it will automatically become law after 30 days from the initial submission to HRH (Article 66).
21. The Agong gets to support any development plans put forth by the government, having declared it as a national development to authorise the Parliament to start work on it (Article 92).
22. The Agong has the power to extend legislative or executive powers of States except to repeal or amend a law unless specifically authorised by the House of Representatives (Article 95).
23. HRH also gets to validate the PM’s nomination of an Attorney General after consultations with the other Sultans (Article 105 and Article 145).
24. The same goes for the selection of the Auditor General (Article 106) and HRH gets the first copy of the auditor report before they are exhibited in both Houses (Article 107 and Article 112).
25. Reviews of any State Grants to Sabah and Sarawak needs the approval of the Agong, once again subjected to advice from the PM and the approval of the House of Representatives (Article 112).
26. The Agong also gets to elect the Chairman, the deputy Chairman and 5 other members of the Elections Committee, subjected to approval from the Conference of Rulers and under advise from the government (Article 114).
27. Gerry meandering also needs HRH’s approval (Article 115).
28. The Agong gets to name where he wants to register the High Court in West Malaysia and the High Court in East Malaysia. Same goes for the Court of Appeals and the Federal Court (Article 121).
29. The Agong gets to name four judges to the Federal Court, ten judges to the Court of Appeals and the High Court judges, subjected to recommendations from the Chief Justice and advice from the PM (Article 122). What HRH cannot do is to sack the judges (Article 125) without prior consultation with the PM and the CJ. The only people HRH can sack (without consultation and advice from anybody) are the junior public servants. Any member of the administration in the Federation or State is a big no-no. Can’t touch the Parliament or Senate either. Hell, the Agong cannot even demote the senior public servants.
30. The Agong however gets to appoint the Chief of Defence Forces, 2 senior Army Staff Officers, 1 senior Naval Staff Officer, 1 senior Air Force Staff Officer plus an additional 2 more (civilian or military) people to the Armed Forces Council (Article 137).
31. Same concept with the Judiciary (Article 138), the Public Services (Article 139), the Police Force Commission (Article 140), and the Education Service Commission (Article 141). What HRH cannot do is to either demote or sack them unless they are very junior (assistant clerks or cleaners) or that HRH specifically obtained prior permission to doing so.
32. Now come the good parts. The Agong possesses the power and authority to declare a State of Emergency (Article 150) or even different States of Emergencies as befitting different circumstances. The kicker is that he can declare it but only Parliament can revoke it. When the country is in a State of Emergency, the Parliament is free to install and promulgate any new laws that are necessary to overcome this situation.
33. The Agong also gets to pardon (or release) any person incarcerated during the State of Emergency (if HRH wants to) within 3 months after the lapsing or revocation of the Emergency (Article 151).
34. The Agong gets the responsibility of safeguarding the position of the Bumis (Article 153).
35. The Agong’s permission must be obtained if a reprint of the constitution is ever required (Article 160). HRH also gets to edit (and proofread) the document if ever it is being translated to another language for publication.

There you have it all. The constitution specifically stressed that HRH can appoint but cannot dismiss. HRH can also declare any number of States of Emergencies but he cannot revoke them. The rest are basically official functions as befitting a ceremonial Head of State. 

So, what does HRH mean by stating that his role “goes beyond what is stipulated in the constitution”? Isn’t the constitution the highest form of Law in a country?