©The
Star (Used by permission)
Reflecting on the law by Shad Saleem Faruqi
State Rulers are constitutional monarchs whose roles are defined and limited by
the law. They are not expected to rule in person or to seek to control the
day–to–day administration of government or to get involved in partisan politics.
But in actual practice, however, the influence of the State Rulers on government
and society is far greater than what the law envisages.
THE political and legal dramas surrounding the appointment of the Chief
Ministers of Perlis, Terengganu, Perak, Kedah and Selangor have stoked the
embers of controversy about the role and function of Malay Rulers.
Are the Sultans ceremonial heads always bound by advice or are they absolutist
rulers with wide discretion to interfere in politics and administration?
If they are bound by advice, whose advice binds them – that of the state
executive or of the federal Prime Minister?
The constitutional position of the State Rulers needs to be examined. As a
generalisation it can be stated that the powers and functions of the Rulers can
be placed in three categories: powers of a personal nature; political powers of
a discretionary nature; and political powers of a non–discretionary nature.
Personal powers: Article 71 of the Federal Constitution guarantees the right of
a Ruler to succeed to the throne in accordance with the Constitution of his
State. The federal government cannot interfere.
All State Constitutions contain provisions to confer discretionary powers on the
Rulers in relation to the following matters:
> ANY function relating to Islam or Malay adat;
> APPOINTMENT of heir, consort, Regent or Council of Regency;
> APPOINTMENTS to Malay customary ranks, titles, honours and dignities;
> REGULATIONS of royal courts and palaces; and
> MANY State Constitutions confer additional discretionary powers e.g. Article
25 of the Constitution of Kelantan invests the Monarch with power to hear
appeals against the decision of any person. Article 61 empowers him to appoint
the State Service Commission.
Discretionary political powers: Articles 38(6) and 159(5) of the Federal
Constitution provides that all Sultans, as members of the Conference of Rulers,
may act in their discretion in any of the following matters:
> PROCEEDINGS relating to the election or removal of the King;
> ELECTION of the Deputy King;
> THE advising on many key federal appointments including those of superior
court judges;
> THE giving or withholding of consent to any law altering the boundaries of a
state;
> THE giving or withholding of consent to any law affecting ten special topics
enumerated in Article 159(5).
Among these are Rulers’ rights, Malay privileges, Malay language and the
citizenship rights of all persons;
> AGREEING or disagreeing to the extension of any religious acts to the
federation as a whole, and
> APPOINTMENT of members of the Special Court under Article 182(1) to try a
Ruler;
> UNDER section 1(2) of the Eighth Schedule and in various provisions of all
State Constitutions the Rulers are allowed to exercise personal judgment in the
following matters:
> APPOINTMENT of a Mentri Besar;
> WITHHOLDING of consent to a request for the dissolution of the State Assembly;
and
> THE making of a request for the convening of the Conference of Rulers.
There can be no doubt that the above discretionary powers enhance the prestige,
power and authority of the Rulers in the political, social and religious life of
the community. The position of the State Sultans is far stronger than that of
the Yang di–Pertuan Agong and the British Queen.
Of course it must be noted that the above discretionary powers are not absolute.
They are “controlled discretions” in that some limitations may apply.
For example, in relation to the appointment of a Mentri Besar, the State
Constitutions impose two guidelines.
The MB must belong to the Assembly. The MB must be a person who in the Ruler’s
judgment is likely to command the confidence of the Assembly.
What this means is that if there is a party or coalition with an absolute
majority and the members of the Assembly are agreed on their leader (as in
Terengganu), the Ruler’s role is nominal.
But if there is no party with a clear majority (as in Perak, Selangor and Kedah)
or the Assembly members are divided on their leader (as in Perlis), the Ruler
acquires a catalytic role.
He is not bound to accede to the wishes of the federal Prime Minister.
He is not bound to appoint the leader of the largest party (if it has no
majority). He is free to choose a non–Malay as the CM if it is expedient to do
so.
He is free to choose any coalition (whether formally registered or not) that may
be able to pass Bills and Budgets and provide stability and continuity.
In circumstances where no coalition can be cobbled up he may even appoint a
“minority government” in a caretaker capacity pending new elections.
In Malaysia because of the steamroller majority of the BN at both federal and
state levels for 11 elections, the Rulers’ awesome powers were never before
exercised. But this time around, “hung Parliaments” with no clear cut majorities
afflict us in three states.
The Rulers’ exercise of their undoubted discretion has left many people worried.
Will these precedents embolden Rulers to act as absolute monarchs and to
disregard their constitutional duty to remain above politics?
The fears are unjustified. In Perak, Selangor and Perlis, Their Majesties have
honoured their Constitutions to the hilt.
It is some of us who are in denial about the changed times and who are trapped
in time frames of the past.
Terengganu is, at the time of writing, still unsettled. But we must be patient.
There are no specific time limits for the appointment of the MB.
In most countries the matter takes weeks; sometimes months.
Non–discretionary political powers: Except in relation to their personal and
their discretionary powers, the position of the State Rulers is similar to that
of the Yang di–Pertuan Agong.
The Rulers are constitutional monarchs whose roles are defined and limited by
the law.
They are not expected to rule in person or to seek to control the day–to–day
administration of government or to get involved in partisan politics.
In relation to most of their functions, all Rulers are required by section 1 of
the Eighth Schedule to act in accordance with their Executive Council’s advice.
Their Highnesses possess great authority and dignity but most of the effective
power lies in the hands of elected officials.
In actual practice, however, the influence of the State Rulers on government and
society is far greater than what the law envisages. Constitutional conventions,
which in Britain converted an absolute monarchy into a limited one, seem to have
worked in the opposite direction at state level in Malaysia.
It is well known that in the past 50 years many Sultans have exerted influence
in areas that are not envisaged by the Constitution.
After a decline of power and influence between 1983 and 1994, the spirals of
history are in motion again.
The last few years have seen a discernible upsurge in popular perception that
the Rulers constitute a vital check and balance mechanism of the Constitution
and, as members of the Conference of Rulers, can supply a much–needed corrective
to the absolute powers of the political executive.
Not surprisingly there has been assertiveness by the Conference of Rulers in
several areas where the Constitution gives them a role e.g. in advising on the
selection, promotion and extension of judges and the appointment of Chief
Ministers.
None of this is surprising. Constitutional law reacts to the felt necessities of
the times.
Dr Shad Faruqi is professor of Law at UiTM