Providing check and balance

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Life is larger than the law and no Constitution is exhaustive or can anticipate every contingency.

Shad Saleem Faruqi, The Star

IN this column on May 29 it had been pointed out that though the Constitution and the laws confer on the Yang di-Pertuan Agong a vast range of powers and functions in the executive, legislative and judicial fields, in reality most of these powers belong to the elected government of the day.

A constitutional monarch reigns, he does not rule. He is generally bound to act on the advice of his elected political executive or some other agency (like the Pardons Board) specified in the Constitution and federal laws.

It must, however, be noted that within a narrow field the Constitution places on the shoulders of the Monarch the burden of making critical decisions on affairs of state in his personal wisdom.

Appointment of the PM: Under Article 43(2)(a) “the Yang di-Pertuan Agong shall first appoint as … Prime Minister to preside over the Cabinet a member of the House of Representatives who in his judgement is likely to command the confidence of the majority of the members of that House”.

The discretion is undoubted but not absolute. The PM must come from the lower House. He must be likely to command the confidence of the majority in that House. If a party or coalition has an absolute majority, its leader has a right to be commissioned. Only if there is a “hung Parliament” or a loss of majority due to death, defection or resignation, does the King’s discretion come alive.

The law is similar for the Sultans and the Governors in the States though there have been a few spectacular, unconstitutional but unchallenged instances of royal assertiveness in this area.

Dissolution of Parliament: Under Article 40(2)(b), the King has undoubted power to refuse a premature dissolution of the Dewan Rakyat. Thus, if a PM loses his majority in the House and wishes to return to the people for a fresh mandate but the King is satisfied that an alternative government is viable, he may refuse dissolution.

However, if a PM is firmly in the saddle, and wishes to call an early election, then conventionally the monarch does not stand in the way and lets the PM choose the timing of the election.

Requisitioning of the Conference of Rulers: The King may act in his discretion in the requisitioning of the Conference if it is concerned solely with the privileges, positions, honours and dignities of Their Highnesses: Article 40(2)(c).

Other cases: Article 40(2) notes that royal discretion exists “in any other case mentioned in this Constitution”. These “other cases” are not precisely explicated. One has to scan the entire Constitution to determine these areas. A partial list would be:

> Right to ask for any information from the government: Article 40(1)

> Delaying legislation for 30 days under Article 66(4)

> Appointments to the Public Service Commission are in the King’s discretion but only after he has considered the advice of the PM and consulted with the Conference of Rulers: Article 139(4)

> Likewise, appointments to the Education Service Commission under Article 141A(2)

> In appointing members of the Election Commission the King “shall have regard to the importance of securing an Election Commission which enjoys public confidence”: Article 114(2).

Reserve powers: In addition to the above constitutionally conferred discretionary powers there are some other instances when exceptional, residual, reserve, prerogative or inherent powers may come into play. We have to remember that life is larger than the law and no Constitution is exhaustive or can anticipate every contingency. Situations which may trigger reserve powers are:

Caretaker government: The Constitution is thunderously silent on who manages the affairs of state during the dissolution of Parliament. Constitutional conventions dictate that the government that advised dissolution continues in a caretaker capacity. Nevertheless, the appointment of a neutral caretaker government during a dissolution is within the realm of possibility under Article 43(2).

Advice of caretaker government: The case of PP v Mohd Amin Mohd Razali (2002) ruled that in the interim period after a dissolution, the monarch is not bound by the advice of a caretaker government.

Dismissal of a PM: Article 43(5) mentions the power of the King, acting on the advice of the PM, to remove “Ministers other than the Prime Minister”. To some scholars, this implies that the PM, once appointed, is never removable by the King but only by the Dewan Rakyat on a vote of no-confidence under Article 43(4).

It is submitted that if a PM, who loses the confidence of the Dewan Rakyat and fails to secure the King’s consent to a dissolution, refuses to step down contrary to Article 43(4), then the King has no choice but to remove him from office. This is similar to the Nizar case in Perak.

Power of pardon: This power and the manner of its exercise on the advice of the Pardons Board are specifically provided for in Article 42. Yet, the Supreme Court in Sim Kie Choon (1986) stated that pardon is a discretionary, prerogative power.

Grant of honours: The Federal Constitution, unlike State Constitutions, is silent on this matter. The power is, therefore, a prerogative power.

Unconstitutional legislation: Suppose Parliament passes amendments in disregard of the special constitutional procedures in Articles 2(b), 38(4), 159(3), 159(5) and 161E. Is the Yang di-Pertuan Agong bound to assent to the Bills under Article 40(1) or does he, as part of the check and balance mechanism, have a right to demand compliance with procedural provisions?

Some commentators argue that the King is absolutely bound by advice and it is for the courts to set things right. It is submitted that this is too narrow a view of the Monarch’s powers. His Majesty’s oath includes fidelity to the laws and the Constitution and this requires him to ensure that the Constitution is never subverted.

In other situations of blatantly unconstitutional conduct by the political executive, the King may have to exercise his reserve power to safeguard the Constitution.

In sum, the influence of a constitutional monarch can never be undermined. Our learned and late Sultan Azlan Shah, writing in 1986, summed up the situation beautifully. “A King is a King, whether he is an absolute or a constitutional monarch … It is a mistake to think that the role of a King … is confined to what is laid down by the Constitution. His role far exceeds those constitutional provisions”.


Shad Faruqi, Emeritus Professor of Law at UiTM, is a passionate student and teacher of the law who aspires to make difficult things look simple and simple things look rich. Through this column, he seeks to inspire change for the better as every political, social and economic issue ultimately has constitutional law implications. He can be reached at [email protected].