©The Sun
(Used by permission)
by Shad Saleem Faruqi
UNDER Article 40(2), the Yang di–Pertuan Agong may act in his discretion in the following four areas:
• Appointment of the prime minister. This was discussed last week.
• Dissolution of Parliament
• Convening of the Conference of Rulers
• “Any other case mentioned in this Constitution”.
Dissolution
Article 40(2)(b) erroneously uses the words “dissolution of Parliament”. What is meant is dissolution of the Dewan Rakyat because Parliament is defined in Article 44 to consist of the Yang di–Pertuan Agong, the Dewan Negara and the Dewan Rakyat.
In strict law the Dewan Negara is never dissolved. It is prorogued under Article 55(2) and conventionally remains in abeyance when the Dewan Rakyat is dissolved for renewal at a general election. Under Article 45(3), Dewan Negara Senators have a fixed term of three years, renewable for one more term under Article 45(3A) Their tenure is not affected by a dissolution of the Dewan Rakyat.
A further clarification to Article 40(2)(b) is that the life of the Dewan Rakyat according to Article 55(3) is five years from the date of its first meeting. At the end of the full term, the King cannot refuse dissolution. His discretionary power applies only if the PM seeks premature dissolution.
Conventionally, the King always accepts the PM’s request for dissolution. But he is not bound by it. One can conceive of some situations when the monarch would be justified in refusing the advice.
For instance, if a government that is defeated at a general election requests an immediate second dissolution but the monarch believes that a stable alternative government can be formed. Or if a general election during a time of crisis or emergency could prejudice the national interest. Or if a prime minister, having lost the poll for his party’s leadership, seeks to improve his political fortune by requesting a dissolution of the Dewan Rakyat.
Two precedents exist at the state level. In Kelantan in 1977, the mentri besar had been dismissed by the PAS–dominated assembly on a vote of no–confidence. His advice to dissolve the assembly and call a new election was rejected by the Regent.
In Sabah in 1994, the PBS chief minister had called an early election. He won a resounding majority in the assembly but lost it due to the morally reprehensible but politically rampant phenomenon of floor–crossing. His request to the governor to hold an immediate re–election was rejected.
It is to be noted that while the monarch can reject the advice of the PM to dissolve the Dewan Rakyat prematurely, he cannot order a dissolution on his own initiative.
That would be a grave departure from his constitutional duty to remain above partisan politics.
Convening of conference
Under Article 40(2)(c), the Yang di–Pertuan Agong may act in his discretion in the requisitioning of a meeting of the Conference of Rulers if the meeting is solely concerned with the privileges, position, honours and dignities of Their Majesties.
Other cases
According to Article 40(2), the King may act in his discretion “in any other case mentioned in this Constitution”. This phrase should be interpreted narrowly and confined to those areas where the Constitution confers discretion in unmistakable and explicit language. There are three such areas:
Right to information: Under Article 40(1), the King is entitled to receive any information concerning the government which is available to the cabinet. The Official Secrets Act cannot be employed to withhold information from His Majesty. In official circles it is well known that when Sultan Azlan Shah graced the federal throne, bills submitted to him for consent were scrutinised thoroughly and legal draftsmen were often summoned to give explanations.
In India in the 1980s, the president asked for a full report
of the Commission of Enquiry into the Bofors arms deal. Premier Rajiv Gandhi
failed to comply. Evidently, the president sought legal advice as to whether he
could dismiss the PM for that failure. The PM got the message
and surrendered the full report.
Delaying legislation: The King has a general duty to heed the counsel of the PM in relation to royal consent for parliamentary legislation. But under Article 66(4), as amended in 1983–84 and then again in 1994, the monarch has a discretionary power, unparalleled in the Commonwealth, to delay a bill for 30 days. After this period the bill becomes law with or without the King’s assent.
Special appointments: Article 114(2) explicitly states that in appointing members of the Election Commission the Yang di–Pertuan Agong shall have regard to the importance of securing an Election Commission which enjoys public confidence.
In the matter of appointments to the Public Services Commission under Article 139(4), and the Education Services Commission under Article 141A(2), the Constitution states that the appointments shall be made by the Yang di–Pertuan Agong in his discretion but after considering the advice of the PM.
Before 1994, this phraseology clearly invested the monarch with a measure of personal choice. But an amendment in 1994 inserts a new clause, 40(1A), that says: “... where the Yang di–Pertuan Agong is to act … after considering advice, he shall accept and act in accordance with such advice”.
The result of this confusing amendment is that in this area the supreme law speaks with two voices. Articles 139(4) and 141A(2) confer unmistakable discretion. But Article 40(1A) imposes a conflicting duty to “accept and act in accordance with … advice”.
In the unlikely event that the matter ends up in the courts, judges will have to determine how to resolve the contradiction.
Dr Shad Faruqi is Professor of Law at UiTM, Shah Alam.