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(Used by permission)
Our Document of Destiny by Shad Saleem Faruqi
Though parallels between the Malaysian King and the British monarch are not inappropriate, our King’s legal position is generally stronger than that of the British sovereign whose vast prerogative powers have now slipped out of her hands ...
IN MALAYSIA, the prime minister does not have a monopoly on the right to advise the Yang di–Pertuan Agong. Other bodies like the Pardons Board and the Conference of Rulers also play a role.
In some cases the prime minister’s advisory role is totally taken over by another body. In others, the King is required to act on the advice of the prime minister after consultation with other named institutions. No common formula is employed and the interpretative possibilities are many.
In the appointment of the Auditor–General and judges of the Federal Court, Court of Appeal and High Courts, the Yang di–Pertuan Agong acts on the advice of the premier after consulting with the Conference of Rulers.
Difficulties may arise if the Conference has strong views against the nominee of the Prime Minister. It is known that the government’s recommendations are not automatically accepted. There are known examples of considerable delays and strong objections.
In matters relating to Islam the King acts on the advice of a council: Article 3(5).
In granting pardons the Yang di–Pertuan Agong acts on the advice of the Pardons Board: Article 42(4). It is noteworthy that the Prime Minister is not even a member of the Pardons Board. Constitutional experts are divided on whether the King is absolutely bound by the advice of the Pardons Board or whether he has a margin of discretion as in India.
It is submitted that in the light of Article 40(1A), the Malaysian position is that at the federal level, the grant of pardon is not a discretionary power and must be exercised on advice.
In appointing the Election Commission the King is duty bound “to have regard to the importance of securing an Election Commission which enjoys public confidence”: Article 114(2).
The King’s power is to be exercised after consultation with the Conference of Rulers. The nominees will, of course, be recommended by the premier.
But in the light of the constitutional admonition to secure public confidence there appears to be considerable scope for leadership and check and balance.
In the matter of development plans under Article 92, the King is required to act on the recommendation of an expert committee and after consultation with three other bodies named in Article 92(1), namely, the National Finance Council, the National Land Council and the state government concerned.
The state concerned may be an opposition–controlled state and may express views vigorously opposed to the advice of the federal agencies.
Scope for discretion
In the overall scheme of the Federal Constitution, the Yang di–Pertuan Agong is undoubtedly a constitutional monarch whose powers and functions are defined and limited by the law.
Though most of his functions are symbolic and ceremonial, in some respects he can supply a restraining and balancing mechanism in government.
This is because of the existence of multiple advisers. This multiplicity has significant implications for the constitutional role of the monarch. It is agreed that because of Articles 40(1) and 40(1A), the King has no discretion at all if all his advisers render the same advice.
But there is scope for personal discretion if the prime minister’s advice conflicts with the recommendation or advice of other advisory bodies required to be consulted.
Comparison with UK
Though parallels between the Malaysian King and the British monarch are not inappropriate, our King’s legal position is generally stronger than that of the British sovereign whose vast prerogative powers have now slipped out of her hands into those of the elected government.
At the same time it must be observed that the Yang di–Pertuan Agong’s influence on the nation is not as significant as that of the British monarch who uses her power to advise, encourage and warn very effectively.
The difference in impact can be explained by reference to history and to the fact that the office of the Yang di–Pertuan Agong is relatively young compared to the British monarchy.
Unlike the monarchy in England, the Malaysian federal monarchy is elected and not hereditary. The monarchy of England stretches back hundreds of years.
In contrast, the office of the Yang di–Pertuan Agong is only 49 years old.
The British Queen has been on the throne for nearly 55 years.
She has been served by 11 prime ministers and can bring to bear on her job, 55 years of national and international experience.
In contrast, the Malaysian King serves his office for five years. The system of rotation used to elect the Yang di–Pertuan Agong serves the demand of the Malaysian situation well but also prevents incumbents of the office of the Yang di–Pertuan Agong from developing a large fund of expertise in national, regional and international affairs.
But with years, this expertise will grow and the potential of the office will be better realised.
*Dr Shad Faruqi is Professor of Law at UiTM.