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Our Document of Destiny by Shad Saleem Faruqi

A constitutional monarch does not transform into an absolutist monarch once elections are called and Parliament is dissolved. In the day-to-day affairs of state, he remains bound by ministerial advice.

THE law of the Constitution is not found within the covers of the constitutional document alone. The formal and written provisions are supplemented by political, informal and unwritten sources. Specifically, the influence of conventions and prerogatives can never be discounted. In addition to the discretionary powers explicitly conferred on him by the basic law, the Yang di-Pertuan Agong takes centre stage in the following situations:

Caretaker government

During the dissolution of the Dewan Rakyat for a period which can last up to 120 days under Article 55(4), a caretaker government is at the helm of affairs. Even though the Constitution imposes no clear fetters on the powers of a care-taker government, it is generally agreed that under constitutional conventions, such a government should not take drastic initiatives and should merely keep the machinery of government going.

In a recent case, Public Prosecutor v Mohd Amin Mohd Razali (2000), the High Court attributed wide discretion to the Yang di-Pertuan Agong during the Dewan Rakyat’s dissolution. The learned judge ruled that Article 40(1) which requires the monarch to act on advice is not applicable during the dissolution of Parliament.

The learned judge expressed the startling view that during a dissolution the monarch can act personally under his prerogative to proclaim a state of emergency under Article 150(1) without the advice of the cabinet.

He observed correctly that when Parliament is dissolved, the previous cabinet does not cease to exist and can advise the monarch in relation to the exercise of his functions. But in his view: “It is up to the YDPA whether to act pursuant to the advice or not.”

Most respectfully, the learned judge overstates the discretionary leeway of a constitutional monarch in the interim between the dissolution of one Parliament and the convening of the next. A fuller reading of the Constitution will indicate that it is contrary to the constitutional scheme of things for a constitutional monarch to assume absolutist powers during the dissolution of Parliament.

Article 43(1) makes it mandatory for the Yang di-Pertuan Agong to appoint a cabinet to advise him in the exercise of his functions. The requirement applies even during the dissolution of Parliament in relation to which period Article 43(2) provides that the prime minister or cabinet ministers may belong to the last House of Representatives.

This means that Article 43(2) recognises the existence of interim governments. It also means the Constitution does not envisage any extended period of time when the country will be without a cabinet to advise the King.

It is submitted that despite the suggestion to the contrary in Mohd Amin Mohd Razali, Article 40(1) does not cease to operate during the dissolution of Parliament. A constitutional monarch does not transform into an absolutist monarch once elections are called and Parliament is dissolved. In the day-to-day affairs of state, he remains bound by ministerial advice.

But the King would be justified in refusing advice if the caretaker prime minister violates constitutional conventions and abuses his interim powers to launch drastic initiatives or attempts to thwart elections or frustrate the will of the electorate or makes controversial, new appointments or dismisses key electoral or treasury officials or incurs massive expenditure or undertakes significant administrative restructuring.

In such extreme situations, the King may remind the acting prime minister that he/she lacks democratic legitimacy to do such drastic things and that the monarch wishes to wait for the new government to advise him on these tasks.

Dismissal of PM

The Federal Constitution gives no power to the monarch to dismiss a prime minister. This is evident from Articles 43(4), 43(5) and the Sarawak case of Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli (1966).

However, it is submitted that in one situation the King will be constitutionally justified in sacking the prime minister. And that
is if the premier ceases to command the confidence of the lower House; fails to secure the King’s assent to a dissolution of the Dewan Rakyat and yet refuses to tender his resignation as is required by Article 43(4).

Unconstitutional legislation

Suppose Parliament wishes to enact legislation affecting the rights of Rulers. Under Articles 38(4) and 159(5), the consent of the Majlis Raja-Raja must be obtained.

Suppose Parliament wishes to alter the boundaries of a state. Under Article 2(b), a law to do this shall not be passed without the consent of that state (expressed by a law made by the Legislature of that state) and of the Conference of Rulers.

If Parliament fails to comply with the mandatory procedures in Articles 38(4), 159(5) and 2(b), is the Yang di-Pertuan Agong bound by Article 40(1) to give his assent to the Bills? Or must he, as guardian of the Constitution, veto the defective Bill?

One view is that the proper course for a constitutional monarch is to signify his assent and let the courts rule on the validity of the Act. The other view is that the King must protect the Constitution and refuse assent.

Granting of honours

The award of titles, honours and dignities is nowhere mentioned in the Constitution. The power should, therefore, be regarded as a prerogative power. In its exercise, the Yang di-Pertuan Agong acts on the advice of the prime minister and in accordance with some non-statutory guidelines as to the number of honours that can be conferred.

However, this is not to deny the possibility that, like the British monarch, the Yang di-Pertuan Agong may personally wish to honour some subjects and may do so.

In sum, though the Yang di- Pertuan Agong is a constitutional monarch, the Constitution and the vicissitudes of politics, anoint him with some discretionary functions.

Dr Shad Faruqi is Professor of Law at UiTM.