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Our Document of Destiny by Shad Saleem Faruqi
The admiration with which the rakyat reacted to the Sultan of Selangor’s stand against abuses in the Klang council indicates that the citizenry sees the monarchy as a check–and balance mechanism and as a court of last resort against the arrogance of power.
THE British had confined the powers of the Malay Sultans to Islam and Malay adat. But in 1957 the Merdeka Constitution enlarged the powers and functions of the rulers considerably and provided iron–clad guarantees of their position, prerogative powers, privileges and immunities.
After the racial riots of 1969, significant amendments were made to the Constitution and to the Sedition Act 1948 to entrench the ethnically “sensitive clauses” of the Constitution. The indirect effect was to enhance the position and prerogatives of the rulers.
But the vicissitudes of politics took their toll in 1983, 1993 and 1994. In 1983 a constitutional amendment to bypass the Yang di–Pertuan Agong and the state rulers in the legislative process was introduced.
For several months an unprecedented, critical debate on the conduct of some Sultans filled newspaper columns. But due to strong opposition from the Conference of Rulers, the clause on bypassing the rulers was dropped. However, the provision to emasculate the federal monarch went on to become law.
In 1993, the immunity of the rulers from civil and criminal proceedings was abolished and a special court was created to try cases involving them. In 1994, the Eighth Schedule of the Federal Constitution was amended to require the states to provide that the ruler shall assent to a Bill within 30 days, failing which the Bill shall become law without the ruler’s assent.
Constitutional protection
The institution of Sultanate is protected by Article 71 of the Federal Constitution. The provision guarantees the right of the ruler of a state to succeed and to hold, enjoy and exercise the constitutional rights and privileges of ruler of that state. Any dispute as to the right to succeed has to be determined in accordance with the Constitution of that state and the federal government cannot interfere.
The sovereignty and prerogatives of the rulers are guaranteed by Article 181(1) of the Federal Constitution. Under section 19(2) of the Eighth Schedule, it is provided that no provision of any state constitution relating to succession to the throne or the position of Malay Ruling Chiefs or similar Malay customary dignitaries may be amended by a state assembly.
Constitutional monarchs
Like the Yang di–Pertuan Agong, the rulers are constitutional monarchs whose roles are defined and limited by the law. The law does not expect them to rule in person or to seek to control the day–to–day administration of government in their states.
Article 71 and the Eight Schedule of the Federal Constitution require that all state constitutions shall contain some “essential provisions” laid down by Article 71.
From the point of view of parliamentary democracy and constitutional monarchy, the most significant provision inserted in all state constitutions is that, except in relation to some discretionary powers, all state rulers “shall act in accordance with the advice of the Executive Council or of a member of it who is acting under the general authority of the council”: Eighth Schedule, part 1, section 11(1).
The implication of this provision is clear: in the new legal order that came into force after Merdeka, the position of state rulers is that of constitutional and not absolutist sovereigns. Like the Yang di–Pertuan Agong and the British monarch, Their Highnesses possess great authority and dignity but effective power lies in the hands of elected officials.
Discretionary powers
However, the constitutions of the various states as well as the Eighth Schedule of the Federal Constitution confer on Their Majesties discretionary powers in some fields, namely:
» function as head of the religion of Islam
» function in relation to Malay adat
» appointment of heir, consort, Regent and Council of Regency
» appointments to Malay customary ranks and titles
» regulation of royal courts and palaces
» appointment of a mentri besar
» withholding of consent to a request for the premature dissolution of the assembly
» making of a request for convening the Conference of Rulers.
Conference of Rulers
As members of the Majlis Raja–Raja, the rulers enjoy additional discretionary powers. Article 38 of the Federal Constitution provides that members of the Conference of Rulers may act in accordance with their own wishes in the following matters:
» any proceedings relating to the election or removal of the Yang di–Pertuan Agong or the Timbalan Yang di–Pertuan Agong
» the advising on some critical appointments under the Constitution
» the giving or withholding of consent to any law altering the boundaries of a state, or affecting the privileges and position of the rulers, or in matters of religious acts and observances.
There is no doubt that these discretionary powers enhance the prestige, authority and influence of the rulers in the political, social and religious life of the nation. The rulers have a constitutional position far stronger than that of the British monarch or even the Malaysian king.
In several areas, conventions have augmented the legal powers of the Sultans. Why this is so is a matter of history and sociology and the continuing popular support and loyalty of the masses to their Sultans.
The admiration with which the rakyat reacted to the Sultan of Selangor’s stand against abuses in the Klang council indicates that the citizenry sees the monarchy as a check–and–balance mechanism and as a court of last resort against the arrogance of power.
Dr Shad Saleem Faruqi is Professor of Law at UiTM.