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In April's Law Series, the Consti team looks into Malaysia's monarchy system through a constitutional lens. Though it is an institution deemed archaic worldwide, the monarchy in Malaysia is arguably entering into a renaissance as recent years has shown its increasing authority and relevance in shaping our country's political destiny. This brings about the issue as to what powers are permitted for the monarchy to exercise. This edition of the Law Series examined its historical background, various laws and provisions, and current issues to shed light on the matter.
1.0 INTRODUCTION
Malaysia as we know practices Parliamentary Democracy with the Constitutional Monarchy and His Majesty, the King as the Paramount Ruler. Our monarchy system, which consists of nine hereditary sultans elect among themselves a "Yang di-Pertuan Agong" (YDPA) for a five-year term. The throne rotates every five years, and each YDPA graciously steps down after five years, giving his brother rulers the opportunity to play the role on the national stage.
1.1 HISTORICAL INTRODUCTION OF OUR MONARCHY SYSTEM
Historically, Malaysia’s monarchy is based on a tradition which dates as far back as 1400 A.D when the Sultanate of Malacca was founded.[1] The concept of monarchy was practiced in accordance with ancient tradition, in which the existence of a kingdom was dependent on the presence of a ruler known as a Raja. It quickly progressed to the 18th century, when the British influenced nine Malay Peninsula kingdoms: Perak, Johor, Kedah, Negeri Sembilan, Pahang, Terengganu, Kelantan, Perlis, and Selangor, and indirectly changed the Peninsula's political and economic scenario. However, the monarchy system where the legal notion of each Sultan was a sovereign ruler was allowed to be reserved.[2] Malaysia's unique tradition of appointing a monarch began in 1957, when the British relinquished control of the country to the people.
Today, the current structure of the monarchy system in Malaysia is headed by Sultan Abdullah of Pahang as the 16th YDPA, replacing Sultan Muhammad V of Kelantan who was abdicated on the 6 of January 2019.[3] Sultan Abdullah of Pahang was elected on the 24th of January at a special meeting of the Conference of Rulers.[4]
1.2 THE CONSTITUTIONAL MONARCHY
Being a constitutional monarch, the Federal Constitution gives provisions regarding the power, control, and limitations for the YDPA. In accordance with the constitution, prior to performing his duties, the constitution improvises that the YDPA take an oath to carry out his responsibility as per Article 37(1) before the Conference of Rulers. From there, the YDPA exercises his functions in accordance with the constitution and/or federal law. This includes consultation with the conference of rulers, advice of the PM or consultations with other institutions such as the Chief Justice or the pardons board.
The responsibilities of the YDPA includes, inter alia, serving as the supreme head of the Federation, the head of Islam in eights regions of the Federation (the 3 Federal territories, his own state, Melaka, Penang, Sabah and Sarawak) as well as the supreme commander of the Armed Forces. the power to dissolve parliament, appoint the Prime Minister and to issue a proclamation of emergency.
2.0 CONSTITUTIONAL POWERS OF MONARCHY SYSTEM IN MALAYSIA
Due to British colonization, the monarchs in Malaysia were no longer bequeathed with absolute powers. This is because our constitution adopted a Westminster-style of constitutional monarchy.[5]
2.1 TYPES OF POWERS BASED ON THE CONSTITUTION
The extent of powers of the YDPA has been extensively laid out in the Federal Constitution. This can be aptly broken down into discretionary and non-discretionary powers.
DISCRETIONARY POWERS
The discretionary powers of the YDPA may be divided into 3 instances.
Firstly, as explicitly provided under Article 40(2) of the Federal Constitution. This includes the (a) appointment of a Prime Minister; (a) the withholding of consent to a request for the dissolution of Parliament; and (b) summoning the Conference of Rulers concerning with the privileges, position, honours and dignities of the Monarchs.
With regard to the appointment of the PM, it should be noted that this discretion is not absolute but rather guided by several principles include constitutional conventions and/or the Federal Constitution itself. For example, if a party or coalition has obtained an absolute majority in a recent election, its leader has a democratic right to be commissioned as PM and the King has no personal discretion.[6] It is asserted by scholars that this discretion may only manifest itself, inter alia, when there is a “hung Parliament”. This was evident during the 2020 Political debacle which resulted in our past 3 Prime Ministers being appointed by the YDPA in his discretion. Additional considerations include, the appointment of the PM must come from the Dewan Rakyat and that he should likely command the confidence of the majority in that House.
Regarding the dissolution of Parliament, a plain reading of the provision would indicate that the YDPA is not allowed to initiate a dissolution, but rather may only refuse/withhold a request for a premature dissolution by the PM. Once again, the YDPA is guided by several principles and/or conventions. If a PM loses his majority and wishes to call for an election, the YDPA may refuse dissolution if he is satisfied that an alternative government may be formed.[7] This was seen in the appointment of Dato' Sri Ismail Sabri. However, if the PM still retains the majority support but wishes to call for an early election, then conventionally, the monarch does not stand in the way and lets the PM choose the timing of the dissolution.[8] Nonetheless, he may still refuse dissolution if it could be prejudicial to national interest and safety (for instances, during a proclamation of emergency).[9]
Second, as derived from the second limb of Article 40(2), “and other cases mentioned in the Constitution”.[10] This encompasses the right to information, whereby the YDPA has the right to gain any information concerned with the government which is available to the cabinet.[11] Next is delaying legislation, by which YDPA has the power of delaying a bill for up to 30 days during the Royal Assent stage.[12] Lastly, special appointments made by him under Federal Constitution.[13] For instances, appointment of Attorney General [14] (Art 145(1)), Election Commission [15] (Art 114), the Armed Forces Council [16], the Justice and Legal Services Commission[17], the Public Services Commission [18], the Police Force Commission [19] and the Education Services Commission by the YDPA.[20]
Thirdly, matters not explicitly covered by the constitution but which may be regarded as “reserve”, “inherent”, “residual” or “prerogative” powers of a head of state permitting personal discretion.[21] This includes the appointment of a caretaker government.
NON-DISCRETIONARY POWERS
Under Article 40(1A) of the Federal Constitution, the YDPA shall exercise his power in accordance with advice, on advice or after considering advice of the Prime Minister or a Cabinet. [22] This advice is binding on the YDPA.
Firstly, the appointment of members of the Cabinet ministers and deputy ministers are formally appointed by the King with the advice from the Prime Minister under Article 43(1), 43(2), 43A of the Federal Constitution.[23] Consequently, YDPA also has the power to revoke any minister from a Cabinet on the advice of the PM according to article 43(5) of the Federal Constitution. [24] This power could be seen from the case of Datuk Seri Anwar Ibrahim v Perdana Menteri Malaysia [1999]. In this case, the letter of revocation of the plaintiff's dismissal from his position of Deputy Prime Minister and Minister of Finance was signed by the Prime Minister instead of the YDPA. The court held that in terms of dismissal of a minister from a Cabinet, the YDPA acted on the advice of the PM. There was no required formality that the YDPA needed to sign it himself. Thus, the PM himself could sign it to convey the decision to the plaintiff. It would suffice for the PM to inform the YDPA regarding the dismissal.[25]
Other instances where the lines are slightly blurred includes the proclamation of emergency. Although the power of declaring the state of emergency depends upon the satisfaction of the YDPA under Article 150 of the Federal Constitution, it is submitted that this power is non-discretionary. In Teh Cheng Poh v PP it was held that whenever powers are conferred upon the YDPA, in which it refers to the opinion or satisfaction to a particular state of affairs, it must be read with reference back to Article 40(1A) to reflect the collection opinion or satisfaction of the collective opinion of the Cabinet or a particular minister to whom the Cabinet have delegated their authority to give advice upon the matter in question.[26] However, in a strange turn of events, the YDPA refused to follow the PM’s advice to declare an emergency in October 2020.[27] It is submitted that this was only possible as the PM at that time did not remain firmly in the saddle. Hence, whenever the PM commands a firm majority of the confidence of the lower house, the PM’s advice is binding upon the YDPA.
3.0 RECENT/CURRENT ISSUES REGARDING AUTHORITY OF OUR CONSTITUTIONAL MONARCHY
Recently, the extent of authority of our constitutional monarchy as well as its adherence to constitutional provisions have come under close scrutiny. Some instances include:
3.1 THE REVOKING OF EMERGENCY ORDINANCES WITHOUT CONSENT OF THE YDPA
In early 2021, the YDPA had issued a Proclamation of Emergency throughout Malaysia from 11 January 2021 until 1 August 2021 due to the Covid-19 pandemic.[28] Parliament was scheduled to reconvene on 26 July 2021. Before Parliament was to meet, Prime Minister Muhyiddin Yassin advised the Yang di-Pertuan Agong to revoke some of the Emergency Ordinances that were still in force. His Majesty refused to do so on the basis that the Proclamation of Emergency and Emergency Ordinances must be scrutinised in the upcoming parliamentary session as promised by the Prime Minister. [29]
In a surprising and unconstitutional move, Law minister Datuk Seri Takiyuddin Hassan shocked the floor with his declaration that six Emergency Ordinances had been revoked on 21 July 2021. This was done without the consent of the YDPA. Article 150(2B), read with Article 150(3) are clear that the power to enact and repeal emergency ordinances rests with the Yang di-Pertuan Agong.
An official statement was issued by Istana Negara expressing His Majesty’s disappointment and the acknowledgement that while His Majesty is bound to act on the advice of Cabinet under Article 40(1), His Majesty was of the view that as the Head of State, he had the duty to advise and reprimand unconstitutional actions, especially of those who had been tasked to discharge the function and powers of the YDPA. [30]
3.2 REFUSAL OF POLITICAL LEADER TO HEED CALL FOR POLITICAL STABILITY
PAS President Abdul Hadi Awang has been vocal about plans to topple the current unity government, despite calls from the YDPA for political stability and His Majesty’s clear wishes that this government last given the political turmoil and uncertain political landscape over the past few years. [31]
The current unity government was formed with the aim of achieving political stability and economic prosperity following a “hung parliament” in the 15th general election. Abdul Hadi Awang has noted that the opposition had every right to formulate plans to take down the current government. He also noted that the YDPA is subject to the Federal Constitution, which upholds democracy and permits democratic change in the nation. [32]
3.3 RISE IN ROYAL ASSERTIVENESS AT THE STATE LEVEL
There are numerous provisions in the state constitution that have incorporated provisions under the Eighth Schedule. However, at the state level, the state rulers are more assertive than that of the federal level as seen in the examples below.
For example, constitutional convention dictates that in cases where a party or coalition has achieved an absolute majority following an election, the leader of the said party or coalition has a democratic right to be appointed as the Chief Ministers or Menteri Besar at the state level. However, in the 2022 Johor state elections, Menteri Besar candidate Hasni Mohammad was not appointed by the Sultan despite him coming from Barisan Nasional, which had enjoyed resounding victory during the elections. [33] In 2015, Menteri Besar candidate Dr Wan Azizah was bypassed by the Sultan in favour of Tan Sri Abdul Khalid Ibrahim despite her being the choice of the ruling coalition.[34] Instances such as these have led to the belief that Sultans have absolute personal discretion in appointing the Menteri Besar of their State.
4.0 CONCLUSION
Recent events have allowed the YDPA and fellow constitutional monarchs to assert their powers and/or discretion such as the refusal to an emergency declaration during the heyday of the pandemic, [35] or even after the recent 15th General Election, where his Majesty had played a fundamental role in forming the current coalition government by requesting for a unity government between the political coalitions. [36] One may say that their powers remain dormant during the rule of a stable government, but will only manifest itself with every political crisis that occurs in this country as they are called upon to play a strong role in ensuring that Malaysia does not fall into anarchy and ruin. The monarchy may very well be in a renaissance for the past 3 years!
REFERENCES
[1] Richard O. Winstedt, A History Of Malaya (Marican & Son Sdn Bhd Publication 1st Edn 1935) p. 30.
[2] Nor Nabilah Arippin et al., A legal Study on the Monarchy System in Malaysia: A comparative with India and the United Kingdom.
[3] The Shillong Times (2019, January 15). Malaysia’s Sultan Abdullah ascends the throne of Pahang state. The Shillong Times. Retrieved from <https://theshillongtimes.com/2019/01/16/malaysias-sultan-abdullah-ascends-throne-of-pahang-state/>
[4] The Malaysian Reserve. (2019, 25 January) Sultan of Pahang elected as the new Agong. The Malaysian Reserve. Retrieved from <https://themalaysianreserve.com/2019/01/25/sultan-of-pahang-elected-as-the-new-agong/>
[5] Political Instability and Enhanced Monarchy in Malaysia | FULCRUM. (2022, June 6). FULCRUM. Obtained from https://fulcrum.sg/political-instability-and-enhanced-monarchy-in-malaysia/ Site accessed on 17th March 2023.
[6] Shad Saleem Faruqi. (2022). The Constitutional Position of the Yang di-Pertuan Agong. Obtained from https://docs.google.com/document/d/1wLHfE68bdLztNdzi6CyzCijolUe5Pq0x/edit . Site accessed on 16th March 2023.
[7] Refer to footnote 6 above.
[8] Refer to footnote 6 above.
[9] The King’s discretionary powers - The Malaysian Bar. (n.d.). Obtained from https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/the-king-s-discretionary-powers. Site accessed on 13 March 2023.
[10] Federal Constitution (Malaysia) art 40(2)
[11] See footnote 3 above.
[12] See footnote 3 above.
[13] See footnote 3 above.
[14] Federal Constitution (Malaysia) art 145(1)
[15] Federal Constitution (Malaysia) art 114
[16] Federal Constitution (Malaysia) art 137
[17] Federal Constitution (Malaysia) art 138
[18] Federal Constitution (Malaysia) art 139
[19] Federal Constitution (Malaysia) art 140
[20] Federal Constitution (Malaysia) art 141A
[21] See footnote 6 above.
[22] Federal Constitution (Malaysia) art 40(1A)
[23] Federal Constitution (Malaysia) art 43(1), 43(2), 43A
[24] Federal Constitution (Malaysia) art 43(5)
[25] Datuk Seri Anwar Ibrahim v Perdana Menteri Malaysia [1999] 5 MLJ 193
[26] [1979] 1 MLJ 50.
[27] See footnote 3 above.
[28] Anis Shafeeqah. (2021, August 13). Constitutionality On Revocation Of Emergency Of Ordinance. Ezri Law Firm. Retrieved from <https://www.ezrilaw.com/post/constitutionality-on-revocation-of-emergency-of-ordinance>. Site accessed on 11 March 2023.
[29] Shad Saleem Faruqi. (2022). Political Instability and Enhanced Monarchy in Malaysia. Issue: 2022, No. 18, ISSN 2335-6677. Retrieved from <https://www.iseas.edu.sg/wp-content/uploads/2022/01/ISEAS_Perspective_2022_18.pdf>. Site accessed on 11 March 2023.
[30] Adib Povera. (2021, July 29). YDP Agong disappointed Emergency Ordinances revoked without consent. New Straits Times. Retrieved from <https://www.nst.com.my/news/nation/2021/07/712776/ydp-agong-disappointed-emergency-ordinances-revoked-without-consent>. Site accessed on 11 March 2023.
[31] Tsubasa Nair. (2023, March 8). Hadi going against the King's call for political stability, says Amanah Youth. Free Malaysia Today. Retrieved from <https://www.freemalaysiatoday.com/category/nation/2023/03/08/hadi-going-against-kings-call-for-political-stability-says-amanah/>. Site accessed on 11 March 2023.
[32] See footnote 4 above.
[33] Hunter, M. (2022, March 16). In Malaysia, the sultans have the authority. Free Malaysia Today. Retrieved from <https://www.freemalaysiatoday.com/category/opinion/2022/03/16/in-malaysia-the-sultans-have-the-authority/>. Site accessed on 11 March 2023.
[34] Au, E., & Nuradilla Noorazam. (2014, August 13). Sultan snubs Wan Azizah. New Straits Times. Retrieved from <https://www.nst.com.my/news/2015/09/sultan-snubs-wan-azizah>. Site accessed on 11 March 2023.
[35] Malaysiakini. (2020, Oct, 25). MP: Agong’s refusal to declare emergency a slap in Muhyiddin’s face. Malaysiakini. Retrieved from <https://www.malaysiakini.com/news/548055>. Site accessed on 13 Mar 2023.
[36] Arfa Yunus. (2022, Nov, 22). PN rejects Agong’s suggestion for a unity govt with PH. New Straits Times. Retrieved from <https://www.nst.com.my/news/politics/2022/11/853854/pn-rejects-agongs-suggestion-unity-govt-ph>. Site accessed on 12 Mar 2023.
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