Transmenu powered by JoomlArt.com - Mambo Joomla Professional Templates Club

©The Sun (Used by permission)
by Shad Saleem Faruqi

The monarchy has been in the news lately.

On Dec 13, a new King - our 13th Yang di-Pertuan Agong - ascended the federal throne. Some readers have asked me to comment on the role and function of the monarchy in our constitutional system. A journalist in Australia telephoned to enquire whether the King could, on his own initiative and in his personal discretion, grant a royal pardon to Datuk Seri Anwar Ibrahim.

A few weeks ago, the Sultan of Selangor found it necessary to call his government to account over a range of issues, including the unlawful conduct of some Klang local authority councillors. The royal concern was entirely in line with the Sultan's powers under Article 55(1) of the Selangor State Constitution that the sovereign "shall be entitled to any information concerning the government of the state which is available to the State Executive Council".

His Majesty also served an admonition to all politicians and state functionaries that public office is a public trust and this trust must be honoured.

In Perak, the Sultan of Perak intervened to ask for tolerance and moderation over the false and malicious news that hundreds of Muslims were being incited to convert to Christianity. The Sultan's son and heir, the erudite Raja Nazrin, speaks out now and then, passionately and intelligently, on issues of public concern.

Is such "activism" consistent with our system of "constitutional monarchy"?

British model

On the role and function of the Yang di-Pertuan Agong and the State Rulers, our Constitution is largely fashioned on the British model but with local adaptations.

In the UK, constitutional battles over several centuries decisively converted an absolute monarchy into a constitutional one. Today, the position is that the British monarchy is largely figurehead. The Queen is bound by law and convention to remain above political parties and to refrain from intervening directly in government administration.

"The monarch reigns but does not rule." Save for a limited number of situations where there is a margin of discretion, which discretion the Queen does not usually exercise, the British sovereign largely acts on the advice of her ministers.

However, despite its largely figurehead role, the monarchy remains a symbol of stability, continuity and national unity. The Queen is entitled "to advise, to caution and to warn". It is known, for example, that in 1977 the British Queen delivered a speech that was interpreted by many as critical of the then Labour Government's devolution proposals for Scotland and Wales.

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

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

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

Malaysian position

In our system of constitutional monarchy and parliamentary democracy, the Yang di-Pertuan Agong is the formal head of the executive branch. A vast array of powers and functions is vested in him by the Constitution and by federal legislation. From the point of view of their nature, the functions can be categorised 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 that the monarchy is the focal point of power in the country. Actually, the real legal position is quite different.

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

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

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

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

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

• Functions exercisable on prime ministerial advice
• Functions exercisable on the advice of persons and bodies other 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 and balance to the ever-expanding powers of the political executive.

Host of formal functions for King

UNDER the Federal Constitution, the Yang di-Pertuan Agong is vested with an array of powers and required to perform a myriad of constitutional functions.

Most of these powers are not personal to the King and are exercised in accordance with the advice of the Prime Minister or other persons or bodies.

In the executive sphere, the King has vast powers of appointment.

Cabinet ministers and deputy ministers, though chosen by the PM, are formally appointed by the King: Articles 43(1), 43(2) and 43A. Under Article 145(1), the Attorney-General is appointed by the King. So, too, are the members of the Election Commission (Article 114), the Armed Forces Council (Article 137), the Judicial and Legal Services 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 made by preventive detainees are appointed by the King under Article 151(2). The Chief of the Armed Forces (Article 137) and the Auditor-General (Article 105) are royal appointees.

Along with the King’s power to appoint cabinet ministers is his power under Article 45(5) to dismiss ministers other than the prime minister. The manner in which this power was wielded was the subject of a famous dispute in the case of Datuk Seri Anwar Ibrahim v Perdana Menteri Malaysia (1999).

The plaintiff who was deputy prime minister and finance minister was dismissed from his cabinet posts. The letter of dismissal was signed by the Prime Minister and not the Yang di-Pertuan Agong. The court held that in the matter of revocation of a minister’s appointment, the King acts on advice. 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 minister concerned.

The fact that the PM’s letter did not indicate that it was written at the behest of the King was of no consequence as long as the King was advised and informed about the decision. An affidavit indicated that this had been done.

The judicial decision upholding the sacking raised some eyebrows. But it must be pointed out that the power of the PM to dismiss a colleague is well entrenched throughout the Commonwealth and it is unlikely that any court, anywhere, will stand in the way of this “prime ministerial prerogative”. In the UK, Mrs Thatcher, during her decade-long tenure as PM, was known to have dismissed several senior ministers, including her Chancellor of Exchequer, quite abruptly.

Members of commissions and councils appointed under the Constitution and employees in federal public services are also removable from office by, or in the name of, the Yang di-Pertuan Agong.

Under Article 41, the Yang di-Pertuan Agong is the supreme commander of the Armed Forces. Under Article 137(1), the Armed Forces Council acts under his general authority. Under Article 151(1), the King receives recommendations from the Advisory Board in preventive detention cases.

In times of national crises, the monarch has the power under Article 150(1) to issue an emergency proclamation.

The King has the power to determine which public authorities shall submit accounts to the Auditor-General: Article 160(2). He can declare an area in a state to be a “development area”, thereby legalising federal intervention: Article 92(1).

Under Article 153, the King is the guardian of the privileges of the Malays and of the natives of Sabah and Sarawak. At the same time he has a duty to safeguard the legitimate interests of other communities. He is the fountain 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 Service Commission are in the hands of the King.

His Majesty has the power to grant pardons, reprieves and respites.

On any constitutional question, he can refer a matter to the Federal Court for the court’s advisory opinion.

The Yang di-Pertuan Agong is part of Parliament. He has the right 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 can become law. He can delay assent to Bills by one month. In times of emergency he has power to make law through Ordinances.

He has the power to remove disqualification from membership of Parliament. He appoints the Clerks of the two Houses. He appoints 44 senators to the Dewan Negara.

He receives and submits to the Dewan Rakyat the government’s annual statement of receipts and expenditure and the Auditor-General’s report.

The King is the head of Islam in eight regions – his own state, Kuala Lumpur, Labuan, Putrajaya, Sabah, Sarawak, Penang and Malacca. He presides over the Council for Islamic Religious Affairs.

Most of the above functions are not discretionary and are not personal to the King. He exercises them on the advice of the Prime Minister or other persons or bodies.

The key provisions on the role of the Yang di-Pertuan Agong are Articles 40(1) and 40(1A). They provide that in the exercise of his constitutional functions, the King is required to act “in accordance with advice” or “on advice” or “after considering advice”.

This means that most of the powers of the Yang di-Pertuan Agong are non-discretionary. In their exercise, the role of the King is purely formal and symbolic.

These powers and functions are in reality vested in the Prime Minister of the day. His Majesty’s position is one of great authority and dignity but not of much power. The monarch is the de jure (legal) head of state 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 and providing a subtle check and balance in government in a number of ways. The potential of the office to provide a moral compass is unlimited and unrealised.

Dr Shad Faruqi is Professor of Law at UiTM.