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News Members' Opinions and Comments Is Sultan Azlan right about our constitutional monarchy? — Param Cumarasamy
News Members' Opinions and Comments Is Sultan Azlan right about our constitutional monarchy? — Param Cumarasamy 
| Is Sultan Azlan right about our constitutional monarchy? — Param Cumarasamy |
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| Wednesday, 22 April 2009 07:36am | |
 ©The Malaysian Insider (Used by permission)APRIL 21 — Sultan of Perak Sultan Azlan Shah has expressed his displeasure in no uncertain terms over comments and criticisms expressed by various quarters on the actions he took on February 5 over the removal of Mohammad Nizar Jamaluddin as the Perak Mentri Besar and the appointment of Zambry Abd Kadir in his place.
While Sultan Azlan Shah’s remarks are understandable, there is however one matter which is of concern. That being his exposition, as reported in the media, that “the role of the constitutional monarchy goes beyond what is stipulated in the constitution”.
And also (of the sultan saying) “that rulers have a far wider responsibility ensuring that the spirit of the constitution, the philosophy behind the written law and the interests of the country and the people are safeguarded at all times”. With respect, this new dimension of constitutional monarchy maybe seen as far reaching. We have in this country nine sultans under nine separate state constitutions and one king under the federal constitution. Again with respect, if these heads of states begin to interpret their powers, rights, discretions and privileges under their respective constitutions in accordance with the ‘spirit of’ and ‘philosophy’ behind the constitutional provisions and framework, what becomes of any certainty in the constitutions? Again with respect, how could rationality, reasonableness and consistency of the decisions on interpretations be secured? In that event the independent judicial review of such decisions will be inevitable. The institution of the monarchy may fall under the purview of the courts. In this regard Sultan Azlan Shah’s own words in the judgment of the Federal Court in 1979 when he was acting Chief Justice (Malaya) re: Sri Lempah is noteworthy. He said, inter alia: “Every legal power must have legal limits otherwise there is dictatorship. In particular it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. “In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene.” - Suara Keadilan * Param Cumarasamy is a former UN Special Rapporteur on the Independence of Judges and Lawyers and a past president of the Malaysian Bar Council. Comments (1)
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Circular No 019/2012: Change of Address for Pejabat Pengarah Tanah dan Galian Wilayah Persekutuan
All discretions come fettered. In any democracy worth its name, they are fettered by what is fair, just and reasonable - or FaJaR, my own mnemonic.
Discretions are absolute only when a nation-state turns authoritarian or totalitarian. In other words, when a nation-state departs from democracy and no longer practises it, discretion is absolute.
It is always for this reason, and this principled reason only, that I have always taken the position that privative or ouster clauses must be removed yesterday, if not earlier.
Indeed, fettered discretions present a challenge to those who aspire to govern. Climbing this mountain of a challenge marks the talent, if any, of any politician or aspiring politician, not walking on a plateau of non-challenge that ouster or privative clauses represent.
As for our constitutional monarchy, even royal preregatives must never go unfettered although royal prerogatives come in the form of the written law as well as conventions.
In great democracies - and in my view the United States, contrasted with the United Kingdom, is no longer one, if the pro-government media frenzy before the invasion of Iraq is any guide - even our lawmakers are subject, albeit to a qualified extent, to that transient and ephemeral creature called public opinion.
Stephen Tan Ban Cheng